stephy defender's office and i represent john l phillips the appellant in this matter it's all right with the court i'd like to talk about both of the issues that were briefed starting with the first issue scuse me because the court my you can prove this by showing that he shared a criminal intent to participate with the end of it with the principal and or they had a common criminal design no this case the state presented no evidence at all that phillips knew sanders had street the street was made more narrow by the fact that cars were parked on both sides the victims describe the defendant's actions as blocking their car which is a word that was used here to describe my client's alleged actions  right the victims you say they were blocked in however they also said that my client was making a left hand turn this happened in a four way intersection both cars were traveling southbound lewis the victim was the first car i think he made i think so at that point arguing is that this was a spontaneous traffic incident and the only point that it took this next step was after sanders exited the car and started firing what are you missing the point it's unforeseeable because no evidence was presented that sanders was armed that night that my client phillips could have known his passenger sanders was going to jump out of the car even even as he said when they wreck if they recognize each other after they   at this scenario it's still at that point is is not proven that he is accountable because it's not proven he shared intent or knowledge with that passenger before he jumped out and started shooting  facts in taylor let more foreseeability to the to the to the violence that happened in that offense and in this case in taylor the driver knew his passenger was armed he stopped the car at the r man's request my friend yes he got in that hearing all right that's right no neither defendant in this case testified they both chose not to do that and more that obviously didn't offer anything into their record it certainly can't be held against them record i'm sure i believe that one of them said blocked but traffic is not and i may point out that question the passenger said we weren't really blocked it and they were able to drive only on twenty first street so there was not a complete block or trap intersection is not a coincidence it's someone trying to make a left hand turn while someone is making a u turn and that's what right so like i said the evidence presented and the facts of the case show you can infer criminal intent by my client's actions and yet there is no evidence at all that he had any knowledge  he was looking for parking so as i said you cannot infer knowledge or intent and there's no evidence of knowledge or intent from my client's actions that was submitted at trial therefore the state did not meet their burden of proof if i may or the state has to prove beyond a reasonable doubt not only that sanders actually shot someone but that my client was accountable beyond a reasonable doubt for his actions and the state as i said failed to meet that burden if it's alright with the court and like to move on to the second issue in this case it was error for the court the trial court to admit improper speculative gang evidence against my client as well as in evidence of that accountability was close also the gang evidence to reacted and admitted against phillips was more speculative something this court acknowledged in its opinion also my client's trial attorney never invited or acquiesced to any of this gang evidence a factor in your decision my client also objected to the gang evidence several times no the gang evidence was not specifically put in the written post trial motion however review is appropriate here under plain error specifically the first prong as i said the closely balance from sirius is different the motion comments trial judges first recollection of this case was that it was gang related so you know at trial and it is finding of fact the judge may have said i didn't consider the gang of it evidence or i didn't consider the was considered in finding my client guilty and that's why it was air and it was also air because the evidence in this case feel dissatisfied to our supreme court standards for using gang evidence this court  now which you know like many other cases stated again evidence is admissible only when there are sufficient proof that the membership is related to the crime and that court used the word substantiated and in our case there is nothing at all from the crime itself from that interaction at that intersection in the shooting to substantiate the state's theory that this is a game motivated shooting and our supreme court is holding that evidence is is not there that the evidence  are i would argue that it doesn't we're well familiar with road rage the fact that these two parties are driving down the street someone makes a huge turn in a four way intersection which is pretty unforeseeable you know however i submit see that this is not an unforced unexplainable event this is unforeseeable but not explainable and spontaneous traffic over cation that occurred in a four way intersection this road wasn't needed to provide the hearsay issue the court admitted over objection and this objection was included in the post trial motion so it is fully preserved for if you hear statements from lewis that his mother said that those boys threatened her testifying was on the right guy but i don't know what scares the prejudice to my client for allowing this statement of threat is extreme it's the only thing used to directly tie phillips to anything having any ill will towards l yes because the driver took the affirmative action of changing the path of his via call going in front of the victims of yes he made a u turn in front of the victim's vehicle and then he only with a big yes but then he moved his car so that he was blocking the progress of the victim's vehicle  shot multiple times this is not a situation where if the shooter shot one time he shot seven times during the process of the shooting the shooter is running or moving down the street with the gone the defendant stop the progress of the victim he waited until the shooter shot the victim and then the shooter got back into the front passenger side of the vehicle and they ups didn't know that the fantasy enders had a gun then the reasonable in france would be that once he jumped out of the car and shot not once but seven times then he could of away and retreated but he didn't do that he waited and so from his actions also following the crime we can go back and infer that he knew prior to the crime that defendant says the charger king blocked us off some to get out shooting and then he says choose two questions later yes it really wasn't locked but it was in front so one would use as it was like that he says well really it doesn't appear that it's a conflict in that it appears that it was how the parties were attempting to describe what happened to the two cars but again it goes back to try of fact issue because  justice clint pointed out the witnesses were using hand motions and saw the trial judge was able to see these hand motions and from the way the witnesses described the event clearly believed that the progress of the fico was impeded i'm not so certain that it matters whether we use the word blocked or trapped but trip was never mentioned by anyone yes amy standen use this trip all the time in her yes but the point i'm trying to make is that the victims you know there was two gentlemen then the car not just mr lewis but also mr gresson the victims in the car felt that they could not go further because the defendant another they could've gone first if they wanted to but i think you know i'm not saying that there's any evidence in the record that they felt that they were free to go in another direction i think that they added and shows that they the their actions are of moving changing the vehicle and stopping that it moved back away from the confrontation i don't recall the evidence the saying that they moved back it's right but but the question is where it is a relationship to the victim's car and the question is is their ability to get out of the car go towards the victim's car and accomplish what they set out to do which is s the people in the car but when you say that's what they want to do whatever and says they're the driver this are had an intent to do anything in the make a left turn because they stopped in exactly the same place where the victims were one o'clock in the morning and they stopped in understood the record differently i understood that the progress of the the the progress of the charger was the one that was impeding the progress of the victim's car and that  did i mean again this is now one gunshot the car define it as going down the street with a gun he sees what he's doing the codefendant gets back on the passenger side this is accountability through and through this is before this is during randomly to let this guy out of the car and i was so hurt because the guy was making a u turn right and i would submit now i would submit that it's an intentional stopping i would submit that it was no random act and that however the defense accomplished  my very first perfunctory because i don't believe there's any significant difference between sanders and phillips especially any significant this difference which helps phillips the plainer e mail says the still the same yes to the gang evidence neither defendant fully preserves the issue and therefore it's a plain error and they also us and regardless of whether phillips was accountable or he was the shooter the fact is they're responsible for each other's actions so the accountable person is just as responsible for the shooting as it works both ways so there's no difference and culpability or you're not more or less guilty because you're the accountable person and the evidence of guilt was overwhelming i mean this court not only did rachel lewis testify obviously the identifications by gresson weren't nearly as strong but the actions were cooperated that this guy got out of the conference and started shooting at the victim as we're currently who was  really object of bystander who witnessed at least the second half of the crime with regards to the gang evidence in sanders this court found three bases for which the evidence was properly admitted and here two of those reasons apply primarily as at the evidence was proper to show motive it was properly admitted the gang evidence was properly admitted to explain and otherwise unexplained event and also that the trial court didn't consider the evidence at all in its findings with regards to the alleged hearsay evidence the defendant actually stands in a worse position than the defendant sanders because a lot of the testimony was elicited by his own attorney with the part about pointing to the defined then the part about how the mother knew the two defendants was brought up by phillips own attorney so this goes beyond play nearer to actually affirmative forfeiture and defendant should not at all be allowed to raise it now to the extent however that it was admitted at all by the evidence of the people it was just quite simply not admitted for the truth of the matter asserted it was not hearsay  admitted for the court spaces for its excuse me for the basis for the identification and the judge made it very very clear that he was not admitting it for the truth of matters or did so for all those reasons the people would respectfully thank you i'll take it this is brief as possible the state has to say that they did prove accountability gonna reasonable doubt and i think this court brought up most of the points i wanted to or i did talk about and wanted to talk about but that's not it wasn't proven it's whether there's no evidence about it i'm tracking the shooter way is not a decisive issue on its own and moreover the one witness who saw that wasn't peach by police officer the number of shots fired are not relevant to anything that has to do with my client the state said there is no evidence provided either way regarding whether or not my client knew of any criminal plan or design cases and the state can season its brief i think page twenty four and twenty six of the gang evidence was used by the trial court and its decision and plainer is appropriate here because as i said the evidence regarding my client's accountability was closely