conviction arising from the state of ohio the questions for this court as i'd sure the court knows subtly two questions did the state's evidence presented at trial was it sufficient to stablish these most serious crimes under the jackson standard secondly because or in hay vs did the ohio appellate court intermediate court's determination that the evidence was a fish and was that a reasonable application of  and the answer to both of those questions is no the evidence wasn't sufficient the intermediate appellate court's determination of the issue was on a reasonable it was not a reasonable application of jackson this case is the most serious kind of case you have in ohio aggravated murder the most the highest level of murder and this was a death penalty case in the beginning of this aaron gibson case close to trial the death penalty aspect of the case was taken off the table but it proceeded as an aggravated murder charge which requires intent to kill an aggravated robbery you have to know there's going to be a robbery there's got to be proof of these things the purpose to kill the the allegation or the charge against gibson was complicity he was convicted because he aided or he was complicit with ricks tom ricks the shooter in this crime so you have to prove as the court knows that the complicit defendant shared that specific intent to kill that the complicit defendant share the intent to rob the intent to commit aggravated robbery which means knew there was a gun but the evidence just does not support these required elements under due process clause you've got at most gibson being the driver who transported rick's somewhere in the vicinity of the small little house townhouse where this happened that's really all you got with respect to in advance of this of the crime they were expecting him they were they were evidence the jury couldn't for that they were expecting him they were expecting yes yes they were expecting gibson and rick's i mean i think there was evidence that that but it just so we get everything yeah no i don't yeah yeah i  think this is a very fact intensive analysis that the court has to under undertake the sufficiency questions always are but there was a there at the there's a conviction here for drug trafficking and i think if you look at the the government's argument here everything they point to to convict there and gibson of aggravated murder and aggravated robbery is the exact same evidence that convicts him of being complicit in the drug deal that was supposed to happen with rick's ten on the cocaine deal complicit with rex those were made concurrent so he's got that tenant lease deal i mean that's this deal that's what supposedly happened behind not challenging those on now so inference i think judge rogers you could make that he was within a mile or two or even more of this apartment as the driver perhaps waiting for his friend to come out after the drug deal went down you know but that's not aggravated murder you know what would the jury find to be sort of a reasonable story of what happens i mean why is he driving around well i mean you know yours is very fact intensive so i think you're wondering you know that a drug deal  that's that's unbelievable they would be waiting for him i'm just asking why why would why would the jury possibly say that's just i really believe a bill that he'd be driving around when he's the one that's being expected well i think they were both expected i don't know that i don't know it was i don't think it really matter which one you know that the deal was that a cocaine deal was expected to go down and rex was introduced to get to to this harper guy the night knew gibson more you know gibson gibson was his front gibson was his friend i mean and so you know i think what a jury might have been able to see here is that there was a drug dealing he was convicted of the drug deal but he wasn't at the scene of the murder there's no evidence he was in  the in the house or that he was protecting the house or the was serving as some sort of the guard told him what he did when he got back in the car under your theory no no i mean no you have to be you have to do  there's no help you get away with it because i mean you you've got to have purpose to kill you've got to share for aggravated murder there's got to be a purpose intent to kill you've got to prove that at the time rick's and harp it would it would at least yeah there's not the evidence of that i mean i think you have to have stand but i'm just saying a jury might think he comes back in the car he's got water money they go and spend there is evidence of that right evidence a jury could find well i think and that's the theory that this was a drug deal and so the fact that he comes back with money and no kid course he's going to come back to your gibson he's coming back with money good the drug deal went down that's why i don't i don't see this this case we cited the the third circuit really is closely analogous here i think the evidence in the kaminsky case where there was you know this this kaminski guy was allegedly the one that got the deal together the big the big time drug deal and his two friends ended up getting killed by the people he set them up with and the evidence against kaminski and his involvement was so much stronger than that against aaron gibson here yet the third circuit in kaminski applying it  found that there was insufficient evidence of the aggravated murder charge and this is a case where kaminski testified he got up and took the stand and explained his story which the jury rejected out of hand he said i wasn't involved in even though there was going to be  he protests professed his innocence the jury rejected it and you had evidence about his involvement that was much stronger than you have here with respect to gibson in the evidence the service circuit held under at  was insufficient under due process standards to convict him of that most serious crime no he was convicted of the drug deal he was convicted of that he's serving his time for that but that's this case you know at best you've got gibson being the driver for a drug deal that went when you got the money afterwards ok that doesn't mean you can infer you could make a double leap a double inference that they're all his girlfriend anymore but i don't i mean i think the testimony was that he found out after the fact that his friend had been killed you know and he found out after the fact that he was with the guy that killed them i mean i think that as if by that he found out that he found that out when the police testified to that effect based on their statements that they obtained from gibson in these in this interview they had with him on march the nineteen which is just was originally digitally recorded within the digital recording was was lost but that evidence came from the law enforcement officers who spoke to gibson and gibson you don't know when gibson says that he found it out i think the evidence was that he found it out within days of it happening you know and so there was a lot of color within those days but again your honor proved beyond a reasonable doubt of a purpose to kill i mean you find out the guy's been killed the jury i'm just seeing whether the jury could have reasonably come to see i don't think they could i think what you're doing and i think this is what judges should do they should probe this evidence but i think when you come down to it you look at a fairly you think ok could they have thought this and you say yeah they could have but if they did they'd be speculating i mean and they can't do that they can't guess that there have to the inference has to have to be reasonable they can use circumstantial evidence absolutely but this court looks like the i think it's good think it's newman that was a decision from it not too long ago i think it was a two thousand and eight or two thousand and nine decision there's also a brown case these are all sufficiency cases because they're your narrative your alternative narrative not that you have to have one is that he was driving around and the guy went in there to do a deal from gibson's perspective either it went wrong or greedy or something happened and he killed him he took the money to whatever it was twenty grand that was seen sitting there something that was testimony and got back in the car and said wow that my great here's the money let's go have fun with  no mention of the murder or maybe even mention of them in that engine of the murderer and the guy says well you had it coming anyway i don't care it's it's good money and off they went all right i mean i don't know that i would go quite that far with respect to some of them but i think the evidence the jury could reasonably infer based on the cell tracking data the gibson did in fact drive that he did in fact return to detroit with rex and that they're based on the government's arguments with respect to going into the casino with money and making the call the stanley peers that there was money after the drug deal but he was convicted of the drug deal i mean that was that doesn't make him a murderer that's the yeah i mean it's aiding and abetting complicity even if under ohio law is different under ohio i think there are that it's all under with both within the same statute complicity and aiding abetting they are defined within the same statute in the instruction i just think whether they're speculating or whether they're using circumstantial evidence that it's easier to conclude that he was aiding and abetting than that he helped plan ahead of time that he was aiding and abetting after you can  abet classically you don't even know the crime occurred the guy said i just murdered somebody will you eyed me out that's aiding and abetting right not i'm not in this case in the this case required in order and this is the ice it's different from sort of perhaps or perhaps so there had to be proof that he shared the intent to kill and that the purpose to kill was there there had to be proof of the best they have as he dropped them off at that point in time when he dropped them off where's the evidence that he knew he was going to be robbed that he knew he was going to be killed i mean as opposed to evidence that he knew a drug deal was going to go down he was convicted that there's no evidence the evidence is insufficient this is a due process case and due process demands the question on this appeal is whether a juror could reasonably find that gibson intended to rob and kill calvin harper the victim not whether the evidence supports no other possibilities and there are three aspects of this case which would allow reasonable juror to find the requisite intent the first one is there was no drug deal here gibson did not have the capacity to provide any drugs the so called drug deal that he set up was merely a ruse to allow rick's to gain easy access to the victim's home without raising his suspicion the evidence that i would point to him because of a drug crime he was convicted of and offer to sell he was not convicted of actually completing the deal consummating the deal and yes offer to sell even though he did many things yes and he he made that offer to sell so that he could basically trick calvin into amassing large sums of money so he could complete the robbery now the evidence that would support the state theory which was by the way this theory was presented in closing argument to the jury was that he owed a large gibson owed a large get to his drug dealer and in fact his drug dealer was threatening him to do it during this time and stalking him to the extent that the i believe it was the day of or the day before the robbery he called the police to protect him secondly the second piece of evidence which demonstrates that he did not have the capacity to provide the drugs was that on march tenth when he was visiting the victim's sister and her friend he in sandusky where he had come from canton with rex he had promised to provide her marijuana yet he left without doing so the following day march eleventh the day of the robbery there was a phone call between the victim's sister and gibson at that time he again promised to provide marijuana to her he said he was coming to sandusky to do so yet he never did and i would also point out that gibson in his interview march nineteenth interview with police edm it is it they act in a call with the victim which occurred at five fifteen pm on march eleventh the victim set oh no the deal is called off i don't need any drugs and at that point we see from the cell phone records that half an hour later after gibson was informed that the drug deal was called off a half an hour later he still in sandusky at five forty eight which was six minutes after we know that rick's entered the victim's house and the murder and the robbery sick that was six minutes later he was still in sandusky and police your theory is that he he was and he was he was he didn't go in with  ricks was the instrument of the crime you know that there was money there to be still well how did rick's know or how did you know because he had made this so called drug deal before then i thought it gibson was the one who made the drug deal he there were numerous calls that was called off at five fifty of you say i'm going to sew you a lot of drugs which means i'm going to be getting money at five feedly has money then they call up and say come call off the when forward anyway i mean i don't actually believe that he called off the drug deal but he that's what he told gibson and it's gibson had in fact you know what the reasonable juror believes to come to the conclusion of intent to jury get to that conclusion well and we were all called off that seems to contradict well we we could either find the reasonable juror could find that again that gibson to not have the capacity to make good on that drug deal so he had to have gone there for a purpose he was still in sandusky he was headed to sandusky even though he said that the deal was called off but beyond that i would  my second point as to why the record shows that he had the intent to rob the victim is that he had a motive he had actually two motives one was he had this drug dealer who was basically threatening him threatening his family and he owed a large get to him and he from that he had the motive to get the money and that only works if you will on the first point which is that he had no drugs to sell right and drugs to sell that would be neither here nor there that he had a big because he could sell them and pay off for the right but there was no evidence of any drugs on the record that he had i mean and the prosecutor argued that he said no drugs and the records showed that he he did not have any drugs so and in addition to your second argument meal you don't speak for my colleagues seems clear to me that there was evidence that he needed money yeah he got that right what's the third one well it's neither here or there to if he had drugs because he could have got money from selling the drug right but there's no evidence that he had the capacity to make good on that and he needed money for another reason not only not only was there some urgency for him to to get in touch with his drug dealer to let him know that he had the money he made that call right after the robbery first thing when he arrived in michigan he made the call to his drug dealer and mynors no no well i'm i still i want to complete your honor if you look at the the argument on motive he also had a gambling habit the defense presented evidence in its case through his girlfriend gibson's girlfriend at the he went to the casino where he was seen on the surveillance camera us at eight thirteen his bets and buy ins were tracked they were substantially more than usual by multiple times he spent seven hours in the casino that evening which again was smoke times what he normally spent ok so my third other than motive and no drugs my third argument is consciousness of guilt which i believe you brought up and that is he although he was very close with the victim's sister calling her some ten times a week before the robbery and after the crime he did not return her sixteen phone calls that she made or answer the phone he similarly cut off all contact with the victim's mother who he was so close with that he called mom after the crime he stopped visiting her finally he changed his phone number on march fourteenth all of these actions this conduct indicates a consciousness of very drastic conduct he could have explained to the family that he was so close with that this was just somebody mistake he did not know about it  idea he just wanted to sell drugs or maybe steal drugs but didn't but then the guy comes out with the water money and says you know i decided at the last minute to murder him here's the money and the guy says gee that's a shame but let's celebrate would that be enough to convict him i would say no but i would say the facts are that if that's the case them see how all these well let me do it if that happened you certainly would call the sister and say we're prosecution he didn't call because he knew he was involved in this robbery he had the motive to be involved he knew this whole thing was simply a ploy to get in there and to rob him and i would i would argue that these are all reasonable inferences and that any conflicting interests is under jackson have to be resolved in favor of the state and the state does not have to rule out every hypothesis except for guilt when and when applying the standard and i would also a number of other things i think are also very telling in this case and that is the jury was given the option of convicting on the lesser included offense of a murder w aggravated robbery was approx was that excuse me the killing of the victim was approximate result of the aggravated robbery and that particular offense did not involve the purpose to kill yet the journey declined to convict on the lesser included offense and chose instead to convict on an offense which involved a purposeful killing and again lesser included offense makes clear that they did see this as a purposeful killing and i would also point out that that that i would i would be hard pressed to find that a reasonable juror who wouldn't kulu that gibson had the intent to murder rex once he was complicit in the robbery to avoid him that is calvin identifying him as a witness in that case once he had the intent to rob him which i believe the evidence does show that he did he have to have killed him there was no choice gibson and rick's were business partners they had a long history of doing  deals and the night before the robbery and murder gibson had introduced rick's to calvin harper the victim so all the witnesses that testified or most i should say that testified that were family and friends knew that that rick's was i mean excuse me calvin harper with anticipating a drug deal and they knew that gibson was involved in this and so it is improbable that a reasonable juror would not find the intent to kill him once they had robbed him and  i would also i'd like to respond to something that was said in the reply brief which is that somehow the petitioner argues that this conviction was inconsistent with an acquittal on prior calculation and design and i do not think that in aiding and abetting or complicity conviction is inconsistent because the prior calculation and design requires mental plan which includes a studied consideration of the means and methods of causing the death and the complicity  statute does not require such high level of planning so the two are not inconsistent i see my time is up if the court has other questions i'd be happy to answer them thank you thank you please the court just a few points with respect to this drug deal he was convicted of that as you know and it wasn't a conviction based upon this notion that he made an offer i mean that's what the jury was instructed the jury was instructed in this is on page i d twenty eight thirteen the defendant is charged with complicity in the offense of trafficking and in cocaine a similar instruction was given on marijuana he was convicted of both because before you can find the defendant guilty you must find blah blah blah but the defendant knowing a better conspired with a no to commit the offense of knowingly selling or offering to sell and there's no the jury didn't you can offer to sell some you don't and you can but but there were there there was no evidence to suggest that there were no drugs i mean there's certainly an inference a jury could reasonably draw there were no drugs i'm sorry are you that there were no drugs i don't think it was argued that there was no drugs i don't remember that the assistant attorney general said she does believe that's what the argument was made in closing i don't believe that was the case the deal think the thing was gibson was the weed guy he was a marijuana got or any evidence that he had drugs there was evidence he had marijuana me that was the prosecutor's argument was that he had a large amount of guess at him enough to pay off the yeah well i don't know about that here i don't know about that but the prosecutor's theory was that he had a ton of marijuana a bunch of marijuana in the trunk and was going to deliver it to the sister of harper but did and but he was the weak guy ric's was the coke guy that that's why rick's was brought into this that was the whole theory here so for gibson and what was the whole theory that rick's was brought into this because he was the guy that would be able to get the cocaine that's what the deal with harper was going to be it was a coke deal he had twenty grand but but the understanding of gibson's and harper for gibson and rick's from the night before this was going to be a four and a half deal is what i remember the testimony being and so that's you know you  understanding if he's dry if he's the driver is you rickson with the drugs on him yeah i mean that's certainly an understanding that gibson could reasonably have had and there's no evidence it was there evidence of drugs being on rick's when he went in harper let him in the house and he's the only one that went in that house he's the only one the only two people that know what happened harper who is deceased and rex who went in the house there's no evidence that gibson was anywhere near the house he didn't serve as a lookout or hold a gun so people know that he's a guy at best evidence that he was near the house and there is evidence of the round with each other they drove with each other and he was within a mile or two of the house ok fair enough i don't dispute i don't decide that it probably let him and there was evidence that is reasonably concluding that there was no drug deal going down here i don't and that he'd be absolute in all this so this stuff becomes more important you're speculating what's in gibson's mind there's no belief there's no reason to believe gibson was engaged in a point and a common scheme with a gun where's the evidence gibson even knew there was a gun a common scheme that some of the going to go in behind closed doors to rob and kill this guy and then come out with a bunch of money where's the proof that gibson knew that was going to happen there's got to be proof of that there's got to be some proof that a jury can make a reasonable inference that he had that intent to kill your honour's there just is not proof of that in this record there might be a reasonable suspicion you could make but this court itself a says reasonable speculation isn't enough it's a stronger inference maybe not still not strong enough for you but a stronger if inference if there was no drug if there were no drugs a stronger in france for the for that government the government would become stronger if there was if there were no drugs ok not strong enough from your perspective understand that are human the you should make that argument but but it it moves the needle a little bit or not i mean it makes it it makes the stronger argument because if he did have the drugs then it's just become sort of speculation that i think that what we were there were no sort of selling the drugs was to murder the guy and grab the money i mean i think which in your honour's you need prove he knew there were no drugs there's none of that there's none of that is there evidence would from fact he was very gifted of other evidence from which a jury could conclude that he knew there were no drugs no there's no evidence what the jury concluded would be just guesswork for a jury to think he knew there were no drugs total guesswork in fact i would think harper letting him in a savvy drug dealer even harper believe there were drugs harper has better insight and that