biase guilty by association it was easy for the jury to lose its way in this case given the close association between mr di biase and mr mcnaughton they were coworkers they were friends they were neighbors they spent a lot of time together and in the at the trial the state asked the jury to draw an adverse inference from that fact they said that the critical thing about this case that the thing the jury had to ask itself was why would an older man tom di biase be spending so much time with a judgment of acquittal as a matter of law at the conclusion of the state's evidence in this case so you're right i mean clearly mcnaughton was involved but there was it's pretty clear there was someone aiding and abetting right i mean for at least one of them i guess the stewart one you have evidence that he picks up a cell phone the way it's and someone comes in the silver buick to pick him up if it's not you see who is the other person i don't know your honor but it's the state's burden to prove who it was beyond a reasonable doubt and the fact you would agree the evidence shows there were two people involved in these crimes well i would agree the evidence shows that someone came and picked filmic not enough but i think that goes to what the state needs to prove in order to establish the elements of the offense they need to prove that whoever it was that came and picked him up and i again i don't think they have shown that it was mr di biase but even if they had they would need to show that when that call was made the person who came in picked mr mcnaughton up knew that they were complicit in a burglary or you know that you would agree that they could prove their case with circumstantial evidence of course all right isn't this circumstantial i mean you're saying there's no evidence well it's there are circumstances that you could reasonable you  the elegant schedule respectfully your honor i disagree obviously the all of the evidence in the case is circumstantial and circumstantial evidence is sufficient to prove criminal liability but i think the key fact is when you break these crimes into their elements you will find that for at least one element of every charged offense there was not evidence that would allow a jury to find beyond a reasonable doubt but how can you say that the the jury says that they heard the evidence and and i agree with you that there  biase was the person who did this your honor i'm not contending that the state's cases press is deficient because there wasn't a smoking gun you said that no reasonable jury could find this and i'm i'm saying that that's what applies in the face of what actually happened respectfully your honor i disagree i think that again the fact that the state was able to make a very strong case on some elements of the offense is entirely irrelevant under jackson if the evidence is missing for one element of the offense and so it's only one element that the state has to prove every element beyond reason what's the one element that you say there was not even circumstantial evidence which the jury could use to support their finding your honor for example with when it comes to the ivanchuk burglary there is no evidence that mr di biase was the one who was involved in that crime or there isn't that the one where your letter confirmed that the jewelry from her jewelry was in his bedroom it was in a b that's correct and that is that was what the trial record shows i mean it when you add everything else up seems really hard with the double deference it applies here to say there's there's no evidence i think that the the eleventh circuit has held in an analogous circumstance that the mere presence of stolen property on the defendant's property does not establish his participation in berkeley you know i understand you know when you isolate it out you can go to the u s reports or the f thirds and find the case where that's all there was and i would agree if that's all there was you have a problem but that's where the other circumstantial evidence which i agree a lot of it can lead to lots of different inferences but when you have that and this i'm hard pressed to believe that doesn't satisfy the double lever's levels of deference i think it's a necessary judge sudden to focus on what exactly that other evidence is we know that the state appellate court drew some incorrect conclusions about what the record showed in addition to just the confusion about whose jury it was that was found in mr di biase is home the state are we allowed to reverse them because there are conclusions are somewhat incorrect is that our standard under no no of course not your honor i but i bring that up because i think it shows that although the standard for habeas relief in this context is very high as we acknowledge this is not a model opinion from the state appellate court of clarity to which the court court should it mean six rarely see them anyway fair enough your honor but i think again when you look at it it is just not the case for example that it is true that my client sold stolen property belonging to the yvonne six that was the conclusion of the state appellate court with respect to the pawnshops and that's just not what the record shows the state contends that the burglary took place on march twelfth my client visited a pawn shop on march fifteenth but the record is absolutely clear that he was alleged to be alone in the store and the only thing he sold were coins that were not stolen so that is just not a fact that shows that he's liable in this case the other thing is so ok fine you've still got the jewelry from that exact in his bedroom you have these guys talking to each other all the time they know each other d b s he's seen in the silver buick usually driving it lots of times so far so good i'm not exaggerating and you know you're not those know what about the now you have the phone call which you have to say is incur mineta and it's got coded language about the luger which is stolen from this in this robber your honor i would i would respectfully disagree with you on two particular points the first is that i do not believe that the phone calls are incriminating i think you know we've provided transcripts of those calls for the convenience of the court mr di biase is it unfair to talk about there have said something that is not quite correct which is there's no mention at all of a luger handgun on any of these calls it was a luger that was stolen from the yvonne six but i think even if the jury could couldn't could infer from these calls that miss hale was lying about the fact that tom had no idea that dale had discussed without his knowledge that ms hell was lying about this being an operative gone as opposed to a fake gun and that tom di biase was lying on these calls about knowing about this gun having any idea what even if the jury did all three of those those inferences the especially the firearm enhanced is still not established as a matter of law not doing the firing him and not doing that that's i'm still just talking about the the burglary because that's that's something stolen and if you have him talking about in code about a gun and what are you talking code other than the possibility you don't want someone i e the police to know what you're talking about it's the state did not establish beyond a reasonable doubt that this was a dog on the i understand but it's a gun i mean at some point you just have to start saying ok it's starting to get pretty implausible that there's anybody else that could have done this well again your honor mr di biase is the one who's denying repeatedly throughout these calls that he had any involvement in these crimes he denies that he knows anything about even once he sort of seems to figure out that she's referring to a gun in code he says i don't have that i don't i never have that i don't know what's going on with that and the jury heard that and they decided how to assess her but entrances to trial from you know that the testimony of these witnesses and the evidence that was in the record and they drew the there's no evidence that it's true that much of this none of this of course is direct evidence it's all circumstantial but the jury weigh all of those circumstances and came to a particular result that's right your honor but they never should have been allowed to do so because the constitutional error occurred when the trial court denied mr di biase is motion for judgment of acquittal before the case ever got to the jury at that moment when the mr di biase is attorney made that motion what the trial court should have done is looked at every element of every offense and ensured that there was evidence in the record to match up to it and again i think with the firearm enhanced mint is a great example of a case where of a charge where the trial court just didn't perform that constitutionally required function under jackson because there's no evidence in the record at all that dull luger handgun that dale stole from the of onset residence that tom di biase ever knew about it there's no testimony that it came up there's no testimony about gilbert gilbert case and i'm not sure i'm familiar with that case your honor ok i thought it makes it clear that it's not it does doesn't matter the state of mind doesn't matter how much you know or don't now and and rose i mean i would i would say one of the problems here and i realize he was unlucky enough to have us counsel below and maybe all this would have happened had that been the case but this argument was a really pressed to the state courts and one of the unfortunate realities due to that is the state courts didn't really have a chance to say as a matter of state law here's what you need to know or don't need to know as to the foreign specification but that of course is not the state's fault but i  do think i agree with you there's something funny about this but the best time to figure that out would have been in this case on direct appeal i agree with your honor about that but i think that the state is the one who put mr di biase on trial and they have the burd to say what are the elements of the offense and what is our evidence to prove that they were the one who was obligated to come forward and explain to the court what the ohio courts have made clear in fire and then ship was which is that the common law rule is that a defendant is not liable for knowing his accomplice had a gun unless he actually knew about the gun it is not a strict liability offense convictions were not unreasonable and i agree with all of the statements made by the russians questions questions or any answers but we're just asking questions it doesn't prove what we think ok well then i agree with your questions and i  agree that you're correct questions were correct and i would probably even answer them affirmatively if i were asked but anyway moving on the first sufficiency claims are subject to the two layers of deference as you not cunning and he developed a pretty sophisticated plan to engage in these burglaries and the engaging in a pattern of corrupting the how do you want to take your store at once so what's the evidence of the st burglaries all we have to show is that di biase aided and abetted and although he argues that they work together there is no evidence in the record that they performed any legitimate work the work was performing these burglaries and patricia hale said dibiase showed up stuff i mean if they're calling each other i get i get that but the cell phone towers gets you just that's just more like we are we all know blocking our law proximity to crime doesn't prove you committed a crime it's all together though i'm not finished i think  made two statements but in addition then we have them going to deal mcnaughton being seen in the area he asked mrs stewart the mother of the person who was burglarized to sign this petition regarding casinos in ohio and then that's maybe not i'd know right right but again he's performing this burglary in the area and then a neighbor sees him across the street to getting into a silver gra this of that it appears that the cars were the car was registered to auto dealership and perhaps they never registered the title if they purchased  it i don't really know the circumstances under which that car was taken from the dealership he was never charged with anything so i assume it was a legitimate purchased and he just didn't register the circumstantial evidence might one say circumstantially that you know that the state  once he found out tom di biase endemic not where the people that went to these precious metal dealers to drop off these the jury that was stolen that they got his name they went to his house and the silver grey buicks in his driveway  didn't live in that house and sergio reynolds did not live in that house and he said correct it was dibiase sister and her husband and a niece and they didn't mention the other people but i think they were like five people living in the house but they specifically said sergio reynolds didn't live in that house and they'll make not and didn't live in that house and the detective said correct and that's all in the trial court record so in addition then in the transcript there's also statements from sergio reynolds that it was the first time the spearmint i don't know how good we did but we did all right for the first one so arguably it could be construed as that's and they were talking about things related to the car and sergio reynolds and dibiase were also talking about the license plate and he said why don't you call rends and tell him that you forgot that the plates were in the car and you switched them from the delta to the regal trying to get him out of the fact that these plates were stolen so what's the answer to the firearms yes acacia is that is a strict liability statute and that's what we're it's not a strict liability i don't believe the case law says that it is you just have to prove the mens rea a for the underlying crime once you've proven the underlying crime then if there is possession on or about your person or under your control at the time you committed that at the time the underlying crime is committed then you're guilty of the firearms that you have to do you have to look this is not strict liability but is there anything that requirement under ohio law that he you prove that he knew the cases cited by opposing counsel all relate to whether he rigged relate to the knowing possession of a firearm as to it a charge of aggravated burglary or armed robbery or aggravated robbery which he was not charged with he was just simply charged with burglary and the possession of a weapon is not a requirement of the charge of burglary so those require knowing possession but for the but for the aiding and abetting of the accomplice liability right and in all of those cases they say that the accomplice can be found liable for possession by the principal offender and so what's your answer to the best hypo on the other side which is you during the burglary and what happened here right and that you don't have to know that the intervention or the principle offender had the firearm and they say it's  finding a gun during a burglary is just as dangerous as bringing a gun to a burglary but that's i mean it's clear ohio case law he has no evidence or no citations i mean his citations refer to a crime of aggravated burglary where knowing possession of the firearm is required there's no knowing possession of a firearm required in burglary and don't like not in committed the burglaries there's evidence that dibiase aided and abetted him in the commission of those burglaries review standard and i would dispute as to state law as to say if you're bound by the state courts determinations as to state law and you're not sure what state law means and let's just say we read your cases we read his amigo i don't know what it means arguably but that's their argument right and i leave the case law is very clear they may argue that it's it's wrong but they need to take that up with the legislature the legislature has provided this and in the case law dibiase received here and they said in no where in that did they change the statute to require a mens rea or to change that an accomplice can be guilty as the same as the principal offender but you would agree normally we presume with listen i'll do this whole thing on one condition no guns we're not bringing guns and we're not stealing guns and i mean not and says fine and then he sneaks one you know either steals one without  brings one without telling him he's stuck with the enhancement yes he would be i mean you you should not get into business with someone i guess into business working business with someone you that you can't depend on to agree to your requirements i mean i don't if you get into criminal activity with a criminal i don't know that you can depend on a criminal to comply with a requirement that you don't steal guns but i would assume that's what the statute goes for  we don't want people stealing guns from houses and so here you go the gun was stolen from a house and we don't know where the gun is and it's eminently more dangerous for the people in the society that this gun is out there and going back take to the phone calls opposing counsel said he acted like he didn't know about the gun it's there's nothing saying he didn't know about the gun in the transcript it says i don't know where it is at meaning presently i would assume and then it said yeah i never have your it like guy over here but aren't you comfortable accepting his his assertions that he didn't know about the gun can we decide are you comfortable are deciding the case  that assumption or not i would just i would agree that he may not have known about it at the time of the deal mcnaughton stole it but i would not agree that he was not aware of it at the time he got into the car or afterwards i think the evidence shows he knew about the gun but again as adults date referring back to the case law it's clear the case law says that he doesn't have to know that his accomplice stole the gun the principal of just a few very brief points your honor my friend made a reference to the fact that the call logs establish mr di biase presence at the scene of these crimes they don't the testimony was that each one of these cell phone towers services an area three is three to five miles apart which means each one services an area between seven and twenty square miles that is a massive area and the mere fact that i can demonstrate that someone was present within a seven to twenty mile square area does not show that they were present at this house at this time detective vester vetter also testified that a cell phone call does not always paying off the nearest tower that has to do with technical aspects of the way that the calls are routed and how busy any particular tower is so i think there is plenty of reasonable doubt from the state's testimony about whether mr di biase was present but i think the discussion with my friend was very enlightening with respect to the gun enhanced most of all and that's what i would like your honour's to focus on because because i think it's the clearest example of a case where the elements of the crime are just entirely missing as i understood counsel i don't think it's a crime i think that might be the thing you guys are ships past us and i don't know we were we we do have a very significant disagreement about the requirement of ohio law and i would submit that the on this point from i was decided after my client's trial but from meyer is also very clear that it didn't quote did not make new case law it merely clarify analyzed ohio law as it existed at the time and that makes sense because as the supreme court of the united states said when analyzed the very similar nine twenty four c statute under federal law it it in from it reach conclusions about the intent requirement based on common law principles and so the supreme court majority in roseman is discussing exactly the hypotheticals that judge sutton was discussing here today what if the defendant just has no knowledge that that there is a gun it's true under ohio law that an  the defendant the principal steals a gun as opposed to brings his own that's not what we're contesting but i think it is absolutely clear from fry meyer under ohio law and from the supreme court of the united states discussing the common law principle which is the same wanted issue that the defendant has to know about the gun otherwise is just fundamentally unfair when the legislature wants to create strict liability crimes those are very rare in the law and the legislature does so explicitly but this is not a strict liability crime it is a knowing crime the defendant has to know about earlier does it say no we're part of it i mean i'm kind of agree with the state that it i don't see where it has this state of mind i mean i think the quaker burglar is stuck if the co burglar you're on i would again i would run i would direct the court to the friar case where they refer to the fact that quote from america not possibly share the culpability required for the commission of aggravated burglary or aggravated robbery that is robbery with a gun where possession of a deadly weapon was an essential element for knowledge that a deadly weapon may be used was required in order to support her convictions so i think what regardless of whether the statutory text as explicit about this point regardless regardless the case law from the ohio court of appeals interpret ing ohio law is clear that the defendant has to know and to your point judge griffin it is the state's burden they put mr biase on trial so there can be a federal jackson violation