three of the issues that are raised in our brief us but of course if your honour's have questions about the other issues and be happy to answer them the issues i will primarily focus on is the state's  mcduffee guilty beyond a reasonable under an accountability theory and the two trial errors that relate most to that which are arguments three of our brief the trial court's allowing the state to introduce a smith and wesson handgun which had nothing to do with this crime and the trial court's error in giving instruction three point one four to the jury start with the reasonable doubt argument as as you will know from our briefs our position in this case is that there was no evidence whatsoever presented mcduffee had any involvement in the planning of this offense prior actually he had no involvement in the offense except for his mere presence there let alone planning or aiding or abetting in any way as would be required under an accountability theory the evidence at trial shows essentially that mr mcduffee met up with aaron henderson and cameron bolden shortly before they went to the victim jackson's house and that at best mr mcduffee was there when someone not him hold a gun really it isn't that there are texts certainly between mr mcduffee and mr henderson but none of those texts give any indication at all that there was any sort of plan for anything other than meeting up cameron bolden testified that there was a cannabis purchase that was supposed to occur allison schippers the girlfriend of the victim testified that the night before she was with bolden and henderson talking about a gun purchase the gun that was found in iowa by the police and linked to this crime was the gun made it to iowa henderson made it and he was arrested in possession of money that had jackson's blood on it shippers testified that she saw him rifling through the victim's pockets after the shooting and this is all evidence that henderson committed a crime here but there's no evidence that was introduced by the state that mr mcduffee either aided or abetted or played exactly the same factual scenario but what you have is the defendant being there when in offenses committed and fleeing and testifying at trial that it was a gang shooting he justified that he didn't know any of the people were armed there he didn't know that there was a street war between these two gangs between the latin disciples in the latin kings and he didn't know anyone w as going to be shot that's that's even more evidence that we have in this case because there's no evidence beyond the fact that bolden testifies that mr mcduffee was there at the time of the shooting defendant handed a gun to people who were using his van and minutes later there was a drive by but the court found that he did not have any intention to aid these people in and committing that crime so our position here is that there's no evidence whatsoever regarding mr mcduffie's planning agreement even knowledge of this offense the actually the other errors the two trial errors that i'd like to discuss really play into this because i think what happened here if you look at the  the judge is allowing this unrelated smith and wesson and if you look at the judge's giving instruction three point one four to the jury it gave them it really allowed them to  associate mr mcduffee with violence that he's a person who carries a gun and therefore he was somehow involved in this offense other than his mere presence and i just want to say that i mix epping be this this video alone after this shooting nonetheless that's that's the theory and even with that tape that doesn't show that mr mcduffee had knowledge as to this  millimeter that was tested by the state all four of the shell casings coming from this gun were matched to that gun the i'm sorry the shell casings found at the scene were matched to that gun three of the bullets were determined to have been fired from that gun and one was not it was they couldn't it was too gammage to definitively prove that it came from that gun so what did you know the state says well you know  we introduced this gun for knowledge that he had knowledge of the offense and a separate matter there's nothing about his carrying a gun that says he had knowledge about this offense at best he had knowledge when i gun so now we have mr bolton and by the way your honour's have i have sued i'm sure have seen the record there's all sorts of testimony about this irrelevant smith and wesson which by the way is silver collar the glock was was so what is the jury what is it you're hearing this is a guy who carries a gun with a file serial number and i know what's going through all of your minds what's go it goes through any reasonable person's mind that this guy's a bad guy because he's carrying a gun with a file on serial number there's only one reason to have a gun like that but he didn't use this for knowledge they did they said in the closing argument that he was carrying that gun to aid the robbery and this is how it plays back into the the lack of proof beyond a reasonable doubt that he participated in this robbery the implication in their argument is i am guessing you know he's a bad guy he carries a serial number filed gun and he was muscle but there's no proof of that at all none the less that idea was planted in the jury's head and to ask if the jury considered it yeah they wanted to compare these two guns they asked for the gun and the guns were sent back and they compared the guns so you know there's a layer of prejudice there from this error right you have a lack of proof beyond a reasonable doubt you have a piece of evidence that is utterly irrelevant there's nothing about this gun that can make it more or less probable that mr mcduffee participated by the way there's no proof that he was actually even carrying this gun on the day of this shooting so what then happens and we admit this issue is not preserved the jury instruction issue is not preserved the instruction three point one four was given and as you know instruction three  the jury that mr mcduffee was in jail on a separate offense this instruction was a relic of the state's original intention to bring up the fact that mr  parole at the time he was arrested which the judge didn't permit yes defense trial counsel error he did not object to this instruction coming in but what what happens is  the rd layer of this this prejudice because now the jury has an instruction that mr mcduffee committed another crime but what's the other crime he committed the jury's left in a void to fill in the blank which is that he was carrying a gun that with the file serial number so he must have been the muscle on this this robbery that during those three items work together in conjunction to really illustrate the kind of problem with this entire case at the state put on and that the judge let them put on a do also want to say with respect to the jury instructions the jury the jury deliberated for two hours without having been given instruction twenty six dollars which is the i don't know the  roadmap for how you do this when you're a jury it tells them how you do what you're supposed to do and it is the door that opens up all of the rest of the instructions and explains to the jury what needs to happen while they're deliberating and the fact that the jury was ultimately given this instruction after they sent out a note a jury note that evidence they had no clue what they were supposed to be doing  yes that was read to them the judge read them that instruction when they came back out that is true but the judge did not tell them to start deliberating over again and at that point you know because of trial coun error the jury still was left with the impression that mr or mr mcduffee was in in jail on some other charge there was no other charge there was no other crime and the void could only be filled in with a gun that a bad guy carries but i mean let me miss remsen let me just ask you a question going back to the gun there was a conversation between your client and his girlfriend that was recorded and she mentioned that the police picked up something at your house with a search warrant that he was there but on the other hand that doesn't mean that whatever gun they're talking about is not necessarily the smith and wesson apologized it is definitely not the glock is definitely not the murder weapon which was found later on and it is at best evidence of his knowledge that a crime had occurred if he was there or we know from the videos that bolden and henderson kind of you see in the videos after the shooting so ms schippers says that she saw henderson rifling through mr jackson's pockets and then  we see them moseying away on tape out for a stroll the rd person ran a couple of minutes before them full tilt running away now what that tells me number one is if that was mr jackson and that is a reasonable person's reaction to a shooting that occurs without their knowledge o ut of the blue the reaction of the other two wandering away is the reaction of two people who have completed their plot to rob mr mr jackson  not used for knowledge thank you your honors camp's testimony that derek or the defendant shot there but the jury found defendant guilty of count two which stated that defendant quote shot derek with a firearm there by causing his death so the jury did believe cam's testimony that testimony was key because he said he saw the defendant pull the gun out and though he didn't see the actual shooting he heard the shots as he was running out of the house so he was the st one out  he knew that would be having a substantial amount of money to buy a gun that you know that that dewey arranged for  is not the murder weapon and to give them the jury to see that you know this is not the clock and also to show that it is a weapon that they were talking about it's a super weapon also which was described at some point in the testimony so it's strictly for knowledge and one of the things that's key is that when siri asked to see the slip and they said if we can't have the gun we at least want to know the length of the barrel so what they were doing was comparing the length of this weapon to the co op which they knew was actually the murder weapon and it was quite clear from all the evidence dismissed and wesson was not the murder weapon i was never had any issue always so let us not issue what's the point of the whole exercise to show defend the defenders knowledge because of this jailhouse phone call when she was being really up to sit person not even saying it was she said it judge did not her in admitting a smith and wesson which in conjunction with the recorded phone call showed defendant's knowledge of the murder he was asking is it a want and so let that's the relevance of the smith and wes they know is not the murder weapon they say will look the clock is short if this you know if it did you see it fits that impression in the snow there's no evidence that i recall where they specifically said this is the clock that confused they just gave it in detail and clear and corrected any problem in the jury structures may doing so in the end the jury was clearly instructed on how to consider these two charges so been received the defendant is involved in offense other than those in the information in the fence would have been the one that he was in jail formally could call that nobody knows what he's in jail for it at time so we have a limit also say that three dollars actually benefited defendant rather than causing him any harm so there was no error and giving that one also and we're going to ask the court to affirm defend his conviction and sentence and the other questions made was that the state did not say that mr mcduffee had the gun in his possession i believe he didn't say he had the gun the gun was in his possession if you look at page nine hundred and thirty seven of the common law i apologize the report of proceedings in this case that is the closing argument of the state at which the state's attorney said now how did the defendant here a big aid and abet the robbery well the biggest thing is he brought the gun as the jury did not find him guilty of discharge the inference is that someone else was holding the glock when the trigger was pulled and it's a little disingenuous for counsel to say that he was found guilty of murder when they when our point is they found him not guilty yes to discharge personal discharge of the gun someone else was holding the gun and pulled the trigger so what gun was the jury supposed to think he was carrying i guess it's the smith and wesson with the file serial number because he's a gang banger four you know i don't understand that argument and it is by the record as for the always carrying guns that of course ties right back into what we're seeing is in error he always carried guns so he must have been carrying a gun on that day not the glock but this myth and wesson with filed serial number i think your honor that the interplay between these errors requires you if you're not going to find if you're not going to reverse the conviction out right this at least requires you to give mr mcduffee a new trial so that he can you know i have a fair trial that's not infected by trial errors coun errors and this prejudicial prejudicial evidence that was not at all relevant unless your honour's have any further questions i ask you to reverse his conviction outright or in the alternative from a new  waived argument to be of our brief which dealt with the prior consistent statement issue i've withdrawn that i'm not pursuing it not arguing it please