involves the collateral stoppel component of the double jeopardy clause i like to focus on the district court's primary air its misreading of the factual record and its failure to defer to the mission court's appeal peals conclusion with respect to the record as a matter of background at the first trial mr law was tried to two crimes first degree criminal sexual conduct and secondly delivery of a controlled substance vallium with a specific intent to penetrate the time of the injection let me say that again that the second count required proof of the delivery of a controlled substance vallium with a specific intent to penetrate at the time of the injection the jury acquitted on the delivery count and hung on the criminal second trial the district court concluded that the jury had rejected that the conclusion of value had been injected into the victim commission court appeals concluded that a re inference from the record was that the jury could reasonably have concluded that the law inject the value him into the victim into karalee but without having the specific intent to penetrate her at the time that he injected her with the val the jury and the reason one from says they can draw not limited to the prosecution's theory in the defense theory because neither the prosecution nor the defendant at the state trial had an interest in a mixed verdict the prosecution was a complete conviction the defendant wanted to complete acquittal no one had an evaluating that decision we start with ash and tells us we're supposed to examine the record of a prior proceeding taking into account the pleadings evidence charge and other relevant matter but there's been a further elaboration on the  says you cannot relive a gate decisions that were necessarily adjudicate at the first trial the question is is the mission court of appeal unreasonable in concluding that this was a possible fair reading arguments by the parties in fact i think at some point the magistrate refers to this as a section that the intent of the prosecutor was to show a sexual assault if the prosecutor says that i'm going to show you that the time he injected her him intent to sexually assault her that would mean acquittal on the delivery count because he has to show more than just a sexual assault he has to show an intent to penetrate and of course the victim who testifies the floor for be evidence that the jury could fire and th touched her sexually no best now i'm interested in doing more i have an opportunity i'm a take because of course the delivery count is a specific intent crime the first to be criticized for conduct is always necessary as a demonstration of penetration penetration injury conduct it doesn't matter what his intent was when he jacks or so this the the district court the magistrate or both made the same error by assuming that the framing of the arguments by the parties limits what a reasonable inference is from the record i'm going to give you some additional facts in the record that makes this clear that this is a reason when france and of course the burden on the petitioner is to demonstrate that mission could appeal decision was either an unreasonable determination of the facts the two or it's important to remember how the jury was instructed at the first trial law delivered vallium to karalee the victim with a specific intent to engage or twit attempt to engage in a sexual act that involved entry by some part of defendant interacts with carrie she has already taken off her shirt and taken off her ball so she also has again so she is naked from the waist up there's a lot of testimony about the similarity between these three victims the kind of physical types who do almost every exactly but the point of course the relevance of that is when he objects or this is a it's not like he's going to be there for two hours by himself in a locker room this is a circumstance which are people coming in and out all the time  so the fact that he is fair it's pretty perfectly reasonable or has to be a possible explanation think about the standards are it's possible explanation the jury could have thought i don't not sure if you wanted to penetrate her he didn't penetrate jessica so maybe just want to foster here is not applicable and the reason foster is not a political here is that the the trial court did have an opportunity to have a witness be interviewed draw credibility terminations he's making decisions about what inferences can be drawn from the record this is no different from the circumstance in which the trial court makes a decision about sufficiency of the evidence i've heard all the evidence i think there's enough of the elements when that matters appealed to the mission court of appeals which is this court it's a done over review in fact it's the united states f reasonable this in this case is defined really not about looking at supreme court press i mean the case revolves around factual issues astri and really it's common sense and you know and when you apply common seeing it to this record the question becomes whether it's reasonable to believe that mr awad didn't intend to be sure he might not and know whether can get back with penetration because he might have been yes somebody might have walked in or something but that's he's in the same position as anyone else who said that to commit a crime and might be interrupted during its being carried out and so that doesn't do that doesn't say that says nothing about what his intent was at the outset and you know so that so it's really even if you accept a highly implausible that is still possible still possible the standard that has to be met because the district court didn't cite didn't say darling but possible explanations are necessary to the cation just talked about the real is to foreclose he can't just be highly improbable possible that the jury didn't listen to a word of the evidence it's possible the jury didn't listen to any of the instructions it's possible be jury just did whatever it wanted to but i think there's i think that you know we don't get to put stuff out of the air oh well one last point about why this would be a reasonable way for major review it is that it's a specific intent crime it's not just the intent to commit the act it's actually the desired result and if he if the jury thought well a michigan trial court but really it was this court of appeal that applied the wrong standard and it's noted by the district court the court of appeal didn't even mention the factual findings of the trial court when it came to different findings the state court of appeal apply denotable review to both the factual and legal findings of the trial court and in foster this court said that failure to give the state trial court deference to the findings is reasonable in itself the state  court should have decided whether the trial court's findings were clearly erroneous and in this case that would have made all of the difference in the outcome but the district court hello yes  opinion directly to u s supreme court's admonition and ash to inquire into the circumstances of the actual case as it was tried rather than base conclusions on hypotheticals i  that that the standard is what's possible it's what's possible when you look at the entire case and what a reasonable jury could have found so in the end it matter not just because the failed to give deference but they applied the wrong analysis and the trial court's findings are and capable on the record for the appellate court findings on reasonable district court doesn't shock you except unreadable factual findings crime until after he injected womack it's totally implausible the entire theory of the case was that lho injected with intent to commit criminal sexual conduct in the first degree not some lesser crime he never value but there's no there's nothing else pinpointing the intent and as the district court noted that in other words i mean what i'm getting at there weren't any jury instructions that could have supported the state to bring those charges but once and that's what this case is really the there are we're told by the state that there are many theories of criminal sexual that would encompass other conduct so it might be where the lesser included offense concept actually has some application and my correct about that counsel are you aware that we're told this in the  by the state of michigan not sure i'm following again i'm pretty sure the state will take its chance to tell us about that well if you were to g trial leaving out all of the evidence and arguments and instruction them you would have a completely different trial that bears no resemblance to what happened in the first trial and that's what double jeopardy most of the evidence presented was to prove that injected well matched with value and it noted district court the basis for the inner duction of the scheme evidence was that lol hoarded value and with intent to commit criminal sexual con back testified that she wasn't raped by force that she was raped as well drugged her and why she couldn't protest the prosecutor argued tried to fight back but wasn't capable because she was dr when he talked about physical helplessness he stated that well mark was asleep because of being drugged and credited womack stating that if she wasn't drugged she would have him and also when talking about their requirements that wall had  list prosecution explain why as a matter of action is helpless and when first explanation doesn't work in the first trial you don't get to come up with a different that explanation we might as well not even have the constitutional guarantee against double jeopardy if the question is whether we can still have a new trial because we can think of better arguments theories and ways of presenting evidence that we didn't do the first time so i believe that that a new helplessness and the district court also opined that there was no viable prosecution that doesn't rely on the argument that it's well matched with value and apparently the state didn't think so either because that was the sole factual basis they relied on in both trials in order to prove the elements under any theory so it's too late to change the district court's correct and th the three points i want to start with the barmy prosecution even if you don't accept the argument on the first point about whether he was relieved it was proper in the first instance of the barbary prosecution is unfounded i say that because there was a misunderstanding  factual record by the district court one of the things he says that in fact was argued here as well bike i felt counsel that the prosecution never argued separate from the value of the first trial in the second trial it's not true the prosecution made alternative arguments at both the first and second trial because there was a there were two theories of conviction which didn't relate to the value at all because i need to show is penetration physical injury force or caribbean force or coercion had two different theories on the lady the val deference to the factual findings and and here's why i think where foster's implicit will this is just like a sufficiency of the evidence case if you had a trial court determination blow insufficiency you would have to grant the deference the missi that's not fair to me it's second degree penetrations necessary for one case thank you very much thank you