“Next, the two frantically grappled with each other on the snow-covered ground as they rolled around and around, each trying to gain an advantage over the other by being the one on top. Queens finally prevailed, but before he could hold his position, he jumped off Nicky and ran to the spot where Nicky had dropped his gun. Queens turned his back on Nicky for an instance as he retrieved the M9. Then in one fluid motion, he picked the weapon up from the snow, fingered it, and aimed to fire at the spot he had just vacated.”