of the case was that david theall was guilty by accountability for the shootings of rome as lucas and charles barrels when willis r c l willis opened fire in the back yard with a spear he was that it was a common criminal design between kill will and maria williams yet the state's evidence show that willis was acting spontaneously and independently when he fired into the backyard in order to prove feel guilty of first degree murder and aggravated battery with a firearm by accountability the state had to prove beyond a reasonable doubt they feel solicited ordered a bit agreed or attempted to aid willis in the shooting in the planning or commission of the shootings that heals participation took place before or during the commission of the shooting and from school and they didn't meet up with you know until they were almost at muriel's house there within a block of his house and there's no evidence on the record that they made a pit stop in between that one block to go and get guns or anything like that to miriam's testimony was clear he said that he didn't know that either one of them was nobody showed each other their guns there was no conversation about us during that time that they walked to the backyard and neither party talked about a confrontation occurring in the backyard or who was going to be in the backyard there's nothing and so the state's evidence to that effect is purely speculative because there's no evidence to support that there's the case the state that somehow if you're not going to get an exact plan from the person he's fighting with winds up getting shot by the person he arrived with and then they both believe that you know this factors to consider he didn't call the police he didn't stick around as a witness on so many levels your honor the state's contention is that the boys went to the backyard on a mission on a on a comma designed to go and confront romance now you're correct the state can use their frontal evidence to show a common design but here there has to be some evidence whether it's circumstantial or direct that there was a prior plan and that hill had knowledge of a specific higher plan and here there is nothing to show that there was any plan in place in fact when the boys went into the into the back yard if they were on a mission to confront romance it would seem as though that would have happened when the boys went to the backyard they never confronted him well massa's the person that initiated that confrontation roam as a confronted to muriel and that's how the chain of events started so the state is painting this picture that the boys walked into the backyard to confront romance and that never happens your honor in fact when willis comes into the  backyard while this goes and sits down on the porch you know not good usually posture for somebody who's on a mission with with with two other people to go and confront somebody with a gun and so it's like the status grasping for straws to draw all these inferences to show that there was a plan when there are there's no evidence of back and even if you look at the cases that the state has cited that it's they cited for being analogous to this case there's there's so much more evidence to to to us include that there's a point you know even if you look at the case of people versus plan that the state recently filed the motion to cite additional authority for there you have the defendant's own statement saying that yeah wasn't on the plan to go and commit the murder i just didn't know that they were going to commit the kind of show that this was not anticipated that this confrontation was not planned out it was kind of a spade it was something that happened at the spur them on and the boys reacted to it it was not a common design there's no testimony that anybody discussed anything showed any signs even knew who was going to be in the backyard you're on is the state also argues that we can draw the inference that there was a common design in place by the fact that still told to me there's someone in your someone shooting dice in your backyard but yet there's no evidence that hill knew that well mass was back there or that he told either of the two that romance specifically back there or even that he was aware that romance that feel that you mary oh oh no mass money there's nothing of it all you have is this business saying you know someone's shooting dice in the back yard you know they get so that they get to the house and to merrill's mom yes they're shooting dice in the backyard i'm f it nobody has his name or a b or anything like that there's just not enough here to draw together some kind of plan that strata where where the court reversed the conviction because the court found that although the defendant may have that the intent to scare you know the defendant wasn't in a calm and planned with with the shooter to start shooting after that the shooting was spontaneous it was very low all that is required is that the defendant be able to show some slight or even very slight evidence supporting the instruction and here this court said and people versus one act that courts have found can constitute recklessness and therefore prompt an instruction on involuntary manslaughter is the pointing up a loaded weapon at another and then that this charge of that weapon after a struggle that's the classic back pattern and that is what we off the the defendant i'm sorry the victim is killed by multiple gunshot wounds and the state knew that it's ballistics evidence was inconclusive and so it covered its bases and closing argument and said that we don't have to show who has bullet involuntary manslaughter but the trial court in a pair of miss could you know misunderstanding of the law thought that he could not give the instruction that was the reason why the court denied instruction not because the court didn't think that there was some evidence  willis killed the victim but they didn't they did not take that position at trial but it doesn't matter what the court thought the question is whether it was the right here and i've been on the dog argument many times as a trial court to up to a firm on this issue this would have to find that there is not even slight evidence on the record that the jury could have concluded the hill recklessly caused the death of the victim and under these circumstances where two shooters the victim back romance came over tried to wrestle the gun away from him and the gun went off now just taking that testimony of mom alone that should have warrants it the instruction but the court was confused the court did not understand the law and that's why the court rejected the instruction deliberated for two days they sent out multiple jury notes asking all kinds of questions about accountability it's clear in this case that they were struggling with with this verdict so their case that they that when the deliberations are take a long time with you that's a lot of questions  act set in motion the chain of events the culminates in the murder of one victim and a serious injury to another victim he's tussling with promos for the gun and while that's happening codefendant is coming up and search shooting at grandma's on the ground is these are these are this is one continuous act not two separate acts and through their actions through the agreement of their actions common design is proven here counsel talks about  the guns coming from school we know chew of them or at school to muriel and willis were coming from school well this would have to get the gun at some point and we know from interesting we know from the arguments in the us there well this trial that defendant was in the backyard he was in demure his backyard he knew omar's was there we don't have to be testifying to that in front of a jury but that the jury in this case could make a very natural inference that these boys taught and even if they didn't even if these boys did not discuss the fact that they muriel owed this older guy money he was gambling in his yard and he was certain to ask or even if they didn't talk about that the plan is shown through their actions once they get into that car the cases you cited people first take it shows you know at least there was some plan some conversation some evidence that there was a common design and struggling to find out what is the common design of these two individuals when they go into the back yard is there any evidence of that and if not can you cite a case where there is absolutely no evidence about a plan or common design going in where accountability is shown i mean a something like an armed robbery or something well i think the thing case is certainly one where they had a common design issue to go after one victim and then one of the one of the group split off and went after a victim that they had no went the backyard are inferences from the right we can only make inferences that are in our favor from the record and that a rational jury could have made from the record certainly we don't have any direct evidence that liberally used the word spontaneous willis is up and shooting to get to force romas to the back of the yard and while he's shooting defendant up and running out and and codefendant is right behind him all the evidence is we have we have four witnesses that say that  criminal venture however the evidence points to strongly points to willis being the principal here because the friend it's gun is on the ground but we know the gun on the ground is not the gun the fire the bullet the killed romas we know that we know there are two people to have guns one gun is there and the other gun is gone so so defender doesn't have a gun in his hand ramos has not shot shot at close range we know that from the autopsy he shot it was not either bullet was a close range both were defendant is accountable for every action and for the rest of the initial crime which was pulling out a wooden weapon and if there are any other questions here as a conclude again the defendant's act started this chain of events that ended in the death of one question is was there a plan was there plan was there a plan we keep getting back to that there has to be a plan to show a common design you can't just use the fact that willis intervene and try to help try to help this man twenty four that there was a plan his actions were spontaneous he saw his friend struggling with a grown man over gun the gun goes off and he comes to his rescue you can't hold he'll responsible for that if there was no plan he tween the chew of them yes it is but under these circumstances we believe that the state's evidence was insufficient i mean the state halfway through trial after five witnesses five of their witnesses had already testified three operate heal a deal you know they recognize the weaknesses of their case they tried to get under under the standard that this court has to review this issue your honor as we argue that there was no evidence of a plan and that's what we have to look for and i just want to touch on the lesser included offense instruction very quickly the fact of the the fact of the state argued alternatively that he of the defendant could have killed could have killed the victim your honour's that shows that there had to have been some evidence of it because closing arguments are based on the evidence so for the state to argue they're you know that they weren't there was no common design and that hill's conduct was reckless that he recklessly caused romance that may if you're should've been given the opportunity to consider that is what i'm saying they should have been given the opportunity to fit to