knew about whether wieland committed arson with regard to the house fire preceded her death in fact the state's evidence actually contradicts it it's eerie about  that element and what she knew about whether we're in committed that arson she told the insurance investigator within a day or two after that fire that if anybody in the family was core is where we argue and we've put to put forward that the whole due process violation of the failure to meet the jackson test actually began when the state wrongfully in our view demanded the admission of the one thousand nine hundred one fires evidence and the one nine hundred eighty four fires evidence and the reason they did so it's clear is that was that was the only way they and therefore there's a probability on our view that he committed the murder now i'm aware that the district court when ruling on the motion for judgment of acquittal under under its double deference under a d p a has to take that at face value i think the district court did and it swayed the district court from really looking at what those facts were in fact we look at those viable other viable reason that the decision would have been killed and again that's putting the cart before the horse which is what happened when we allowed the ninety one fires evidence to come in and it allowed the court to rely on the probabilities that mr whelan committed the arson and committed this the subsequent murder and that's why we've got a problem here that violates the jackson rule that we can't have speculation involved in criminal convictions and it also violates the prior rule announced and victor versus nebraska which specifically addresses the doctor in a chain of chances and says this is this is not the standard for sufficiency in this country you can't rely on probabilities  only did the state's evidence contradict a major i mean ager element it also wasn't sufficient to to prove that he committed the eighty six arson we believe and i can take a look quick real quickly for  those nine nine factors that the state argued before the motion for judgment of acquittal and the first one was and how they don't they don't like elves the first one was that the decei had a plan to catch the arsonist which was shared with petitioner well we have demonstrated in the brief that that she had a plan she had several plans and that she shared them with more than just the petitioner maybe she didn't share them with her her grandson and her granddaughter who were intentionally the arsonists in the case but it doesn't give us the identity of the perpetrator of the third fire the house fire well let me ask you this if you think the state was that's what i'm confused and why do they have to prove that he actually committed it as opposed to just that the mother in law suspected that he did i thought that was all that was needed for the state to convict on the results only convicted of a murder not of committing an arson that's so why isn't it enough that they put on evidence from which a reasonable jury could say you know what we don't know who no one's ever going to know who actually committed that particular arson but one thing we can figure out is that the mother in law thought it was him and he level of evidence is that the state prove that the prior offense to her in the case gardner court upheld the conviction and found that the evidence was sufficient because there was evidence that the murder victim had substantial information that the defendant had committed the prior crime this is about murder with regard to the for the reason of preventing the disclosure of identity again again setting aside the one element about whether to see what about the perpetrator of the fire setting aside what she thought about wheeling which i'd say the state's evidence contradicted mean come back to that third third and was that she knew that he was always in the barn when the fires occurred and the fourth one was that he knew the floor plan of the house those are sufficient facts in the context of the rest of the evidence and we don't get to go to jackson's standard without looking at the context of the rest of the evidence you don't get to make an inference when inference is irrational in the context of the other evidence in the and going back  unemotional responses we've demonstrated there was absolutely no evidence of this the main issue as far as his response is had to do with the the last fire the house fire and both his wife as well as the fire chief al then said that he was stunned and they used and we've cited the record where it shows that  was there and present at the time that mr whelan it's hard to mr alba and the fire chief so that evidence that she would have seen that he was stunned and days she knew him the state's evidence was merely that the passers by that assisted in rescuing mrs whelan and the children from the house thought his responses were unemotional you can't look at that as a as a rational inference in light of the rest of the evidence it sa seemingly responsiveness had to do with the attic fire that was the first fire and again the state's view is well there's a person up on the roof that was putting out this fire who watched him from the milking parlor and  evidence that he shared that with anybody prior to this trial eight years later there is no evidence that one of his companions who is sisted in the fire actually shared with anybody that  absolutely why because or the standard is identical there's no question that the oregon standard is identical there's no there's no question that the issue about whether jackson sufficiency tests was resolved unlike the state's position that there may be some question mike in the nevada case that i believe it was that was recently raised about it does have a different standard there's no substantively different standard in oregon ok thank you thank you was critical evidence for the state is because he was indicted as he needs to he murdered her to conceal his identity is the arsonist whether that arson needs to be proved beyond a reasonable doubt or that arson is the most compelling ok i'll run run through the evidence on that one ok if this is the june twenty second house fire the first piece of evidence is that the  victim and his wife had concocted a plan to catch the arsonist given that the prior to our sins had occurred on a monday morning the victim agreed that she would sleep on the couch that sunday evening in africa catch the arsonist the following monday morning yet and that plan was shared with the kitchener and yet that plans for oil because ars occurred that that very sunday morning that leads to an inference reasonable inference that the arsonist knew of this plan on top of that you have his frame a number of people that we could be called to say essentially one yes petitioner counsel i recall from the record there was a testimony by the so she had of the petitioners and they were talking about getting paid for a house burning down like six hundred yeah i mean i just i don't know why i can't place where that came from but i'm just surprised that you wouldn't go there first that was my question as well would seem that that if someone is telling someone you can make money essentially by burning down houses then he says the house is next could find good reason we find that a rational juror could conclude the petitioner was guilty you know the one of the other elements that had to be presented to the jury was evidence that kimberly looked at him suspected or knew  his evidence of his of his motive which is the basis of the aggravating factor but the state did not need to prove that she actually knew just to give a hypothetical what for example let's say you have a back robber let's ma did not need to prove that she had a particular mental state did you want to address it all in your remaining time the exhaustion arguments i don't i want to cut you short on what i'll call the merits of the case but i also don't want  reference to state statute we pointed out the state statute has no substantive substantive standard in it it's just the process and then well and then it must be tactical when they didn't they didn't cite jackson in the appeals court it's not tactical we had at least because we had two different we had two different attorneys i think that's important if you're going to even consider that argument the state makes i don't exist any question that the nevada's standard is way different as far as the language than the jackson standard and whatever's worth you know about it still references the edwards case and so there is a question you know whether or not they did abandon a federal a federal claim because they only cited the state here there's no question same standard with regard to the the evidence regarding the six hundred dollars to burn down the barn here in the background is that that information didn't come out until after him gold was was at th farm hand they had only said that after her after her death and the context was was broader they were both renovating the bar and and there was always an intent to tear down the yellow house the in fact this is we would have boxes still of all of her her heirlooms in the house that were burned in that fire because they were going to build a dream home well they ended up building a mother in law a cottage for the mother in law of him well first there was always that there was there was the house nest and with regard to the potential for fire on that is when they finally decided it was time to start building the dream house they had actually decided they were going to donate t department for it to be burned down and in the meantime we have we have you know the door that the bathroom door being set on fire and some discussion about whether the daughter was was really not happy there i think i have one last thing i got a couple seconds here her to prevent his identity if you don't have any evidence that she suspected him in the first place that's a predicate in order to get to that last that last element and again you talk you look at the gardner cases said in that case there was evidence that the murder victim had appreciate your arguments very hopeful