After months of investigation and deliberation, Dan Rubinstein and the 21st Judicial District Attorney’s Office will not be pursuing criminal charges in the death of Brett Ojiyi due to insufficient evidence at this time.

Ojiyi, a Colorado Mesa University football player at the time, died of a gunshot wound from a .25 caliber gun on September 22, 2018.

As outlined in a letter sent to local media outlets, Colorado Mesa University and the attorney representing the Ojiyi family Thursday afternoon, on the night Ojiyi received the fatal gunshot wound he was said to be hanging out with several friends at an apartment at 1171 Main St.

Though there were nine people in total in the apartment, Rubinstein determined that Gary Scott, 21, and Virnel Moon, 23, were the only ones on the main floor of the residence at the time of the shooting.

The investigation of that night determined that Scott was involved in the accidental shooting that resulted in Ojiyi’s death.

Though he gave several varying statements to police, in his final statement, Scott said Ojiyi was shot when he was attempting to transfer the gun to Scott, according to Rubinstein.

“I reached out with my right hand and it popped,” Scott described in his fourth statement to police.

Rubinstein said all four statements varied in some way.

Scott indicated he was about four to five feet away from Ojiyi at the time of the shooting.

The investigation determined Moon may not have been looking at the time, and phone records indicate he was involved in a text message stream at the time of the shooting.

“There was no indication of an argument, fight, disagreement or other ascertainable motive for anyone to have intentionally or knowingly shot Brett Ojiyi,” it states in the DA’s letter.

Scott admitted the he and others had smoked marijuana that night and the toxicology report determined that there was a presence of marijuana in Ojiyi’s system.

Rubinstein said other charges were considered, including reckless manslaughter and criminally negligent homicide charges for Scott in Ojiyi’s death.

At the very least, Rubinstein felt attempting to influence a public servant, because of his varying statements, and tampering with evidence charges were possibilities.

As far as proving reckless manslaughter or criminally negligent homicide charges, Rubinstein didn’t feel he could prove, beyond a reasonable doubt, that Scott caused the death of Ojiyi. Nor did Rubinstein feel that he could prove beyond a reasonable doubt who was responsible for the discharge of the gun. Even if Scott pulled the trigger, Rubinstein did not think he could prove Scott was in a culpable mental state where he would have thought that pulling the trigger would cause Ojiyi’s death.

Ojiyi had apparently been pointing the gun at several of the people in the apartment that night, including Scott. Given that, combined with his consistent cavalier and reckless behavior with guns in the past, Rubinstein felt it is reasonable to believe that Scott did not think the gun was loaded.

“Even if I could prove that his finger was responsible for the discharge, I could not prove a culpable mental state,” the letter states.

The police’s investigation into Ojiyi’s phone seemed to indicate that Ojiyi had good relationships with the eight other people in the apartment at the time the shooting was said to have taken place.

Witness testimony described Ojiyi to be playing with two guns that night, a black .45 caliber and a silver .25 caliber. He had apparently been on a hoverboard (a self-balancing scooter) dancing to music with a gun in each hand.

He was also said to be pretending to shoot at the two people in the room, Scott and Moon, who were playing the video game Madden Football at the time, according to the DA’s letter.

In a September 15, 2018 video, Ojiyi could be seen riding a hoverboard in a house waving around guns and pointing them at the camera. In other videos he is seen with both the guns recovered from the crime scene.

The guns found at the apartment that night had been stolen. The black .45 caliber handgun was reportedly stolen from a vehicle in town in 2017. The .25 caliber handgun was reportedly stolen the night of the shooting from a CMU student’s car.

In a video on his phone, apparently taken hours before the shooting took place, Ojiyi can be seen flashing the .25 caliber while riding in a car just after 10 p.m.

Police were dispatched to the scene at 12:05 a.m. on September 22.

Using these videos as evidence, police determined Ojiyi likely introduced the gun to the activities that night.

Based on the trajectory of the bullet, police believe Ojiyi was shot downward in the upper right chest at about a 35 to 40 degree angle.

Though Rubinstein did not feel he had sufficient evidence to charge someone in Ojiyi’s death, tampering with physical evidence and attempting to influence a public servant, due to his varying statements, were certainly on the table. However, this presented a “joinder” problem for the prosecution because if they were to pursue a tampering or attempting to influence a public servant charge, they would not be able to add murder charges in the future if new evidence presented itself.

Because of this factor, Rubinstein left the decision to the Ojiyi family, saying he 100 percent deferred to the family to make the decision.

According to Rubinstein, the family requested Rubinstein not file those charges if it would have a negative impact on the future ability to prosecute someone in the case if new or different evidence surfaced.

The Daily Sentinel attempted to reach out to the attorney of the victim’s family but did not hear back in time for this article to be published.

Recommended for you