of a crime beyond a reasonable doubt to begin i'd like to be to start with the irreducible minimum of this case let's set aside the issue of whether or not it's clear in about a law that someone can aid in a bed a crime different from write it is there there is certainly a state law question overlay here but i would submit that that even and the irreducible minimum i was getting to is that even accepting the state's formulation of state court law presented to them of every element of the crime and in another analogous case i suppose it's cold and behaves another ninth circuit case that came out last year which talks about insufficient proof of that element presented by the state and also go crime for that specific case once again back to the irreducible minimum setting aside and there's a wealth of problems with this conviction but let's get down to what is the irreducible minimum and that is the state would have to prove that mccurdy knowingly aided and abetted a target crime that was part of a kamiski even play and and that the natural improbable consequences of that target crime was  implied malice murder so even assuming that this is a job that recruiting could aid in a better general intent crime that's different from the crime of the principal i'm sure and that is natural and probably consequences requirement which it is the aiding and a that first of all were aided by the fact that the vote of supreme court specifically they all held that there was no specific intent to kill on behalf of mccurdy the nevada supreme court found insufficient evidence of any intent to kill on behalf of this recording they sustained a conviction based on implied malice general women's heart theory of second degree murder it's also clear that they know he didn't pull the trigger yes he's the deathly didn't pull the trigger the firearm was handed off between five and twenty minutes before this target crime and that this is where we get to dismiss and see the evidence there is no evidence in this record that there was a common scheme in play and between mccurdy and just of warning to commit any crime at all no target crime no evidence of a target i would suggest i think you have difficulty seeing that of course wrong when you hand when you go out and start a fight and then you hand a loaded gun cocked to somebody else that you think is sure employ it requires to but it's to mental state requirements have to be approved by the state even under nevada want now here they have proved the mental state requirement that's required it's not sufficient evidence that he harbored just general millington is no fire and this is significant in that church it was never instructed that they have to find that there is no mental state jury instruction at all in this case regarding aiding and abetting liability and that is significant but does he have to have a specific intent to there will be the same as the shooter that would be that is one of our arguments your honor that that you have difficulty with expressed malice first degree murder this is the principle and generally the aiding and abetting liability is the principles crime that designates the contours of aiding and abetting i believe now that the state raises this question well you could be convicted of law under this the laws and statutes nevada you still need to have this added additional mental state and there is insufficient evidence in this record of the existence of this mental state and in about a supreme court nor the jury nor anybody has ever found that it exists  general on general intent crime you can with knowledge aid the principal to commit a different target crime and if the principal happens to commit a more serious crime you are liable for that if the natural public consequences is an extension of aging and liabilities lively to the breaking point we have a situation where the gun is taken from somebody and they end up shooting at such a random person whether it's five to fifteen minutes later and so they're trying to say that  curry although they agree he had no intent to kill anybody is guilty under aiding abetting liability theory and under the unique facts of this case we are so many there's insufficient evidence that the mental state requirements of aiding and abetting liability are met by the state to be a unique case for you kids hope to prevail in this actually virginia challenge facing federal post conviction twenty four this year that you're now discussing correct correct we would have to be saying that the state court somehow made a mistake in its own reci warren was convicted of first degree murder and they found that the evidence was sufficient there also in the very same opinion they dealt with the fact that mr mccurdy was convicted of second degree murder and found the sufficiency of the evidence was there they knew the clever claim that oh aiding and abetting requires a heightened level of intent i think short changes and about a supreme court and at the federal level that we should give than about a supreme court deference on that point now which the court found that you need this that mental state is that an element of the crime for which is a no i don't do not feel that you have to have any any additional mental state besides what the mental state is the definition of that implied malice and they found that in mr mccurdy case they looked at his conduct on the day here where frank perkins was was shot how he got these two groups together there is some discussion about flashing gang signs and the and the costly crips and all and this guy waving the gun around i got mine i got mine and he gets all these people riled up throws a gun in the mix and really doesn't care what happens next and the court i think is objectively is not objective leon reasonable and looking at a situation like that and deciding that there is sufficient evidence to find out implied malice and that there is at our level here when we're looking at sufficiency of the evidence to give you that point i think the question was you need more than implied malice is argued by the defendant and if not why not not for m because mr mccurdy was convicted of second degree murder he was not convicted of first degree murder his coconspirator was convicted of first degree murder and the jury instructions that were provided to the to this higher offense you create a situation where two coconspirators come together and they create this implied malice situation they create a situation where there's a general malignant recklessness of others lives and safety  and and having this gun thrown in the mix and it's going to be used somehow but we don't care how long we just really don't care about the just a few of the other people and because one of the coconspirators goes beyond that not only does he have that general malignant recklessness past some point in time he's focusing in on one individual person frank perkins season comes around he's the guy has the weapon and during that split second period of time he's deciding i'm going to haven't you have and an extra element beyond implied malice to be found guilty of second degree murder i believe i've explained why i believe he doesn't need to have that unless there's any other questions i would go ahead and move on to another county apparently the a one ninety five point zero two zero zero zero how aiding and abetting does not require any additional mental state that no mental state has been defined ok and i believe the reason for that and it aiding and abetting it depends on what the crime of the principal is sharma believes stands for the proposition that if the principle is if if the defendant is to be charged with aiding and abetting i believe applies sharman only overturn mitchell related to specific intent crimes the reasoning and sharma was they found a situation where the betters were found guilty just like the principals when they had a lower level of intent i believe sharma was meant to get at the situation where you have the getaway car driver that's thinking you know his his cohorts going to run in and steal a six pack of beer and when he comes back out he's got blood all over him and now he's on the hook for a murder that that he wasn't expecting to go on that is not this case that is not what we have here that generally malignant reckless situation toward the lives of others ok just because he went beyond the fact and even developed a premeditation and part of the killing of frank perkins does not negate the fact that under the lesser included standard of implied malice he also had that implied malice he could have been convicted for second degree murder also on implied malice third and so i think that is in its self sufficient to to fulfill the dual intent requirements of aiding abetting liability if there's not any other questions i'll go ahead and see the rest of my time thank you case that the government just mentioned which was decided december of last year in about supreme court held that sharma did not articulate a new rule it was just clarifying that this was the law the whole time  nuances that the master in court should have gotten into in their opinion in the simply didn't they did not address the accomplice liability rafiq ations of this opinion and when you put that all aside and you look at the facts of this case there just insufficient evidence of mr mccurdy harvard