dissenting.
Because Scott’s conviction for second degree murder is not supported by proof of guilt beyond a reasonable doubt, I believe he is incarcerated for life in violation of the United States Constitution. I reach this conclusion from my review of the record and the teaching of Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Consequently, I dissent from my brethren’s reversal of the district court’s issuance of a writ of habeas corpus.
I.
The sole issue before our Court is whether after reviewing the evidence undergird-ing Scott’s conviction for second degree murder in the light most favorable to the prosecution, we can conclude that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our inquiry is governed by the holding of the Ohio court of appeals, as reflected in their journal entry:
The trial judge correctly instructed the jury that in order to reach a verdict of guilty of murder in the first degree it must conclude, beyond a reasonable doubt, that: (1) [the decedent] was a living person ... who had been killed by [Scott]; (2) that the killing was done purposely.
A careful review of the record demonstrates that there was a sufficient amount of probative evidence presented to the jury to enable it to find beyond a reasonable doubt that [Scott] purposely ... killed the [decedent] .... At the same time the record reveals no evidence, circumstantial or otherwise, from which it could be concluded or inferred that the killing was ... premeditated. Accordingly we ... find [Scott] guilty of murder in the second degree and order that [Scott] be imprisoned for life.
Joint App. 30 (emphasis added). Thus, the Ohio court of appeals held that Scott purposely killed the decedent. Unfortunately, the majority opinion inexplicably fails to answer the only question presented to us: whether there is proof from which a rational trier of fact could find each element of the offense beyond a reasonable doubt. Rather, the majority, acting as grand jury, prosecutor, and state trial court, posits that Scott’s conviction for second degree murder is supported by proof that he “aided and abetted” the murder of the decedent. Though under Ohio law a charge of aiding and abetting may be stated in terms of the principal offense, O.R.C. § 2923.03(F) (Baldwin’s 1979), there is no evidence that Scott had actual notice in his indictment of a charge of aiding and abetting. Nor is there evidence that the jury was instructed on that charge. It is clear, however, that Scott was not convicted in state court of aiding and abetting. Nor did the state appeals court affirm on that basis. Rather, it found him guilty of a lesser charge. Fundamental due process rights to notice of charges and the opportunity to defend oneself restrain the state’s ability to deprive its citizens of their liberty. Absent an indictment, prosecution, jury instructions and conviction in a state court for aiding and abetting, Scott’s due process rights have been abrogated by the majority. His petition for habeas corpus challenges the only offense of which he was convicted by the Ohio court of appeals, purposely killing the decedent.
*437II.
In any event, I would hold that Scott’s conviction for second degree murder is not supported by proof of guilt beyond a reasonable doubt, for no rational trier of fact could have found that the essential elements of the crime of murder were shown. The majority opinion recites in extended detail facts of record. Nowhere does that recital refer to facts in support of the elements of the crime for which he was convicted. The silence of the record on that score apparently led the majority to seek justification on grounds of aiding and abetting.
In support of its conclusion that the evidence is sufficient to convict Scott for the murder of the decedent, the majority concludes that “the statement Scott made on the trip from Mahoning jail to Cleveland placed Scott, [his co-defendant and the decedent] together in the car at the approximate time the murder took place.” Scott’s three inconsistent statements concerning his whereabouts the evening of decedent’s death are relevant evidence from which a jury can infer no more than that Scott was in the decedent’s car on the evening of his death.
Additionally, the majority notes that expert testimony estimated the time of decedent’s death as between 11:00 p. m. and 2:00 a. m., and as late as 3:30 a. m. Thus, the state proved that Scott was present with the decedent during the four, hours in which he was short and had the opportunity to perpetrate the crime. Proof of Scott’s presence in the car (not at the scene) and his opportunity to perpetrate the crime are the only inferences in the state’s favor that the evidence will rationally support. Under Ohio law, it is a fundamental principle that even the presence at the scene of a crime, standing alone, never suffices to prove guilt beyond a reasonable doubt. The law of Ohio is clear that “the mere presence of an accused at the scene of a crime and the fact that he was acquainted with the perpetrator is not sufficient proof, in and of itself, that he was an “aider and abettor.” Columbus v. Russell, 39 Ohio App.2d 139, 316 N.E.2d 897 (1973). “The mere association of one who perpetrates an unlawful act does not render a person particaps crimmes (a participant in the crime) so long as his acts are innocent.” State v. Clifton, 32 Ohio App.2d 284, 290 N.E.2d 921 (1972). These principles are embodied in the concept of constitutional due process articulated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 307, 61 L.Ed.2d 560 (1979), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
Perhaps in recognition of the fundamental constitutional principle that Scott’s mere presence at the scene and opportunity to perpetrate the crime is not proof necessary for conviction, the majority also holds:
The jury could likewise have concluded, with far more justification and reason, that Scott and [his co-defendant] formed a decision to kill [the decedent] and either or both of them carried out the plan by shooting him with his own pistol, later discarded, and by shooting him in the back of the head with a sawed-off shotgun which was later found in the car in which they were stopped. The jury could also have found that Scott, and [his co-defendant] took a dead or dying [body] to the vicinity of East 76th and Central Avenue where he was “dropped off” . . . particularly since his body was found at 75th and Platt.
However, such a conclusion, to be “justified and reasonable,” must be predicated upon evidence. Significantly, the majority points to no evidence from which the jury may infer that Scott formed a decision to kill the decedent. Nor was there any evidence that the shotgun under the front seat of the defendant’s car in which Scott was stopped at 5:30 a. m. was used in the commission of the crime. The majority cautions against the temptation to “speculate on evidence which might have been offered rather than on that evidence actually placed in front of the jury.” Yet in discussing “theories” which the jury may have accepted, the majority engages in plain speculation. Speculation is contrary to the Supreme Court’s admonition in In re Winship, supra, at 364, 90 S.Ct. at 1072:
*438Due process commands that no man shall lose his liberty unless the government has borne the burden of ... convincing the factfinder of his guilt.
It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.
A full distillation of the majority’s reasoning and explication leaves us with nothing more than conjecture, suppositions and speculation as to what may or may not have motivated the jury to convict. None of this adds up to or is a substitute for proof, nor does it give rise to inferences supportive of guilt. The evidentiary gap remains and the requirements in Jackson v. Virginia are thus unmet. The only conceivable way a trier of fact in Ohio could find guilt is to pyramid an inference atop an inference. This is impermissible in Ohio.
The majority places great stress on the various inconsistencies in Scott’s explanations of his movements on the night the victim was murdered. It is this series of contradictions as well as the Ohio statute of aiding and abetting and complicity which lead the majority to distinguish Speigner v. Jago, 603 F.2d 1208 (6th Cir. 1979), cert. denied, 444 U.S. 1076, 100 S.Ct. 1023, 62 L.Ed.2d 758 (1980).
I turn again to the question of the inconsistent statements and reiterate my view that the inconsistencies in Scott’s explanations amount to nothing more than a credibility deficit.
I am deeply troubled by the majority resting its holding on such a nebulous and improper basis as “their sequence [Scott’s inconsistencies] suggest that Scott crafted their content to what he perceived to be the need when they were made,” (emphasis added), as though it is substantive proof of murder. Such a suggestion regarding inconsistencies, I submit, is not proof in Ohio.
The Speigner majority contended not only with the fact of a falsehood, but also with the fact of Speigner’s flight and fugitive status for a period of nearly a year. Even so, this Court in Speigner recognized that these events and the inferences to be drawn therefrom did not fill the evidentiary gap necessary to meet the charge of murder in the second degree. Judge Peck observed:
In addition to the evidence previously considered in the text, the record below contains evidence that petitioner cooperated with the driver Scott in giving a false rental story and that petitioner evaded the Cleveland police for some ten months after his June 26,1973 release. Although these facts may tend to prove that petitioner committed some crime they do not tend to prove that petitioner committed the crime of second degree murder.
Similarly, the fact that petitioner Scott gave varying explanations of acquaintance with the victim and presence in the victim’s automobile and events during the hours preceding his arrest, as did Speigner, would not support a conviction for second degree murder.
In this case, the fundamental protection of due process of law necessitates an af-firmance of the district court because no “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, supra, 443 U.S. at 319, 99 S.Ct. at 2789.
Though it is with great reluctance that any federal court intrudes upon the finality of a state criminal conviction, this Circuit is in all likelihood the final arbiter between Scott’s guarantee to fundamental due process of law and Ohio’s interest to make someone pay for the killing of the decedent. Absent proof of Scott’s guilt beyond a reasonable doubt, our Court must not be the trough from which Ohio satisfies its thirst to avenge a brutal killing. I dissent.