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Full Opinion
Gerard HARRISON
v.
STATE of Maryland.
Court of Appeals of Maryland.
*1221 Julia Doyle Bernhardt, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), for petitioner.
Steven L. Holcomb, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent.
Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.
BATTAGLIA, J.
Gerard Harrison fired his .38 caliber pistol six times at a man known as "Valentine" but struck James Cook instead. We issued a writ of certiorari to determine whether the evidence in this case was sufficient to support Harrison's conviction of attempted second-degree murder. Harrison *1222 argues that the evidence was not sufficient to prove the intent element of that crime. For the reasons discussed herein, we agree with Harrison and hold that, under the theory of "concurrent intent," the evidence was insufficient to support a finding that Harrison possessed the requisite intent for attempted second-degree murder. We also hold that the doctrine of "transferred intent" does not support the conviction because "transferred intent" may not be applied to prove attempted murder.
I. Background
Harrison engaged in a shooting in Baltimore City on July 27, 2001. As a result of the incident, the State charged Harrison in a nine-count indictment with: (1) attempted first degree murder in violation of Maryland Code, Article 27, Section 411A (b) (1957, 1996 Repl.Vol.);[1] (2) attempted second degree murder of Cook in violation of Article 27, Section 411A (a);[2] (3) first-degree assault of Cook in violation of Article 27, 12A-1 (1957, 1996 Repl.Vol., 2000 Supp.);[3] (4) second-degree assault of Cook in violation of Article 27, Section 12A (1957, 1996 Repl.Vol.);[4] (5) reckless endangerment of Cook in violation of Article 27, Section 12A-2 (1957, 1996 Repl.Vol., 2000 Supp.);[5] (6) use of handgun in the commission of a felony or crime of violence in violation of Article 27, Section 36B *1223 (1957, 1996 Repl.Vol., 2000 Supp.);[6] (7) the wearing, carrying, and transportation of a handgun in violation of Article 27, Section 36B (1957, 1996 Repl.Vol., 2000 Supp.);[7] (8) possession of a regulated firearm after having been previously convicted of a misdemeanor carrying a penalty of more than two years imprisonment in violation of Article 27, Section 445(d)(1)(iii) (1957, 1996 Repl.Vol., 2000 Supp.);[8] and (9) possession of a regulated firearm after having been previously convicted of a crime of violence in violation of Article 27, Sections 445(d) and 449(e) (1957, 1996 Repl.Vol., 2000 Supp.).[9] On June 12, 2002, in the Circuit Court for Baltimore City, Harrison was convicted of attempted second-degree murder and use of a handgun in the commission of a felony or crime of violence on an agreed statement of facts, which the prosecutor narrated for the record:
The facts would be that, on July 27, 2001, in the fifteen hundred block of *1224 Clifton Avenue, the victim in this matter, Mr. James Cook, was standing and talking with friends when he was struck in the neck with a bullet. Investigation revealed that [Harrison] and another unknown person were shooting at someone known only to them only as Valentine, and in the course of the shooting, accidentally struck the victim, Mr. Cook. Your Honor, a witness was identified. He was taken down to the station and shown a photo array. He observed the photo array and picked out [Harrison] who would be identified in court here today as Mr. Gerard Harrison to my right, with counsel, as the person he knows as Fats and as one of the shooters. I believe the photo array is already in evidence in the court file from the motions hearing. Situationally, the defendant was advised of his rights. He waived his constitutional rights and he did give a statement that was taped. I believe that and the advisement of rights are already in the court file as well from evidence and motions hearings. During the statement, [Harrison] advised that he and a person known to him as Twin Shitty began firing on a person that they knew as Valentine. [Harrison] stated that he had one gun and the other person had two guns, stating that he had fired six shots and then they both ran. Found out later that somebody other than their intended target was shot.
[I]f called to testify, the ballistics examiner would have stated that the ballistics evidence recovered from the crime scene was consistent with [Harrison's] confession and that the ballistics show that there were three different firearms used and they matched the caliber that [Harrison] described. The victim was taken to Sinai Hospital where he was operated on. All events occurred in Baltimore City, State of Maryland. That would be the statement supporting the guilty plea as a Count Two, attempted murder in the second degree and Count Six, use of a handgun in the commission of a crime of violence.
The statements made by Harrison during a police interrogation on August 22, 2001, which were referred to in the agreed-upon facts, were as follows:
[Officer]: Okay and if you could, in your own words again tell me what you know and what happened as far as what you knew in this case.
Harrison: All I know is that me and another ... another dude, a friend of mines walking up on the basketball court and he had two guns, I had one. We just started shooting in the direction of Valentine.
[Officer]: Of Valentine, and why were you all shooting at Valentine?
Harrison: Because he around there selling some dope.
[Officer]: Okay, and was he told something in the past?
Harrison: He was told in the past not to hustle around there.
[Officer]: Okay, and when you all were shooting in the direction of Valentine, what type of gun did you have?
Harrison: I had a .38.
* * *
[Officer]: Okay. Now when you all were shooting at Valentine, how many shots did you shoot at him?
Harrison: Six.
[Officer]: So did you have any more shots left?
Harrison: No.
The judge imposed concurrent sentences of twelve years imprisonment for attempted second-degree murder and five years imprisonment for the handgun violation.
*1225 The Court of Special Appeals affirmed the convictions. Harrison v. State, 151 Md.App. 648, 828 A.2d 249 (2003). In addition to affirming the handgun conviction, the court held that the evidence was sufficient to sustain Harrison's conviction of attempted second-degree murder of Cook. Id. at 662, 828 A.2d at 257.[10] In reaching this conclusion, the court considered the State's arguments that the intent element of the crime could be supported under theories of "transferred intent," "depraved heart" recklessness, and "concurrent intent." The court concluded that the conviction could not rest on theories of "transferred intent" or "depraved heart" recklessness. Id. at 659-660, 828 A.2d at 255. The theory of "transferred intent" fails because, according to the court, under Ford v. State, 330 Md. 682, 625 A.2d 984 (1993), the doctrine only applies when a defendant shoots at his target, misses, and an unintended victim receives a fatal injury. Harrison, 151 Md.App. at 658, 828 A.2d at 254-55. The court held that "depraved heart" recklessness also does not apply because Harrison's conviction of attempted second-degree murder requires that he had a specific intent to kill; depraved heart" murder, on the other hand, "only requires wanton disregard for human life, ... a mental state [that] falls short" of the necessary mental element of attempted second-degree murder. Id. at 660, 828 A.2d at 255. Nevertheless, in the court's view, the evidence did support a finding of the requisite intent, under the theory of "concurrent intent." Id. at 661-62, 828 A.2d at 256-57. The court held that the jury could infer that Harrison "intentionally created a `kill zone' to accomplish the death of Valentine, the primary victim," and, therefore, the jury could also infer that Harrison had a concurrent intent to kill Cook, who was among those "gathered at the scene of the crime." Id. at 662, 828 A.2d at 257.
Harrison petitioned this Court for a writ of certiorari and raised two questions, which we have rephrased and combined into one: Is the evidence sufficient to support a conviction of attempted second-degree murder, where Harrison fired six shots at one person, missed that person, but hit another person causing injury and not death?[11] We conclude that the evidence fails to support a conviction for attempted second-degree murder based on the theory of "concurrent intent" because the stipulated facts do not prove that Cook inhabited the "kill zone" when Harrison fired the errant shots. Furthermore, the State's reliance on the doctrine of "transferred intent" also fails inasmuch as that doctrine does not apply to a charge of attempted murder.[12]
*1226 II. Standard of Review
Our opinion in Moye v. State, 369 Md. 2, 12-13, 796 A.2d 821, 827 (2002) sets out the appropriate standard of review in the instant case:
The standard of review for appellate review of evidentiary sufficiency is whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. See State v. Albrecht, 336 Md. 475, 478-79, 649 A.2d 336, 337 (1994). We view the evidence in the light most favorable to the prosecution. See id. (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979) and Branch v. State, 305 Md. 177, 182-83, 502 A.2d 496, 498 (1986)). We give "due regard to the [fact finder's] finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses." McDonald v. State, 347 Md. 452, 474, 701 A.2d 675, 685 (1997), cert. denied, 522 U.S. 1151, 118 S.Ct. 1173, 140 L.Ed.2d 182 (1998) (quoting Albrecht, 336 Md. at 478, 649 A.2d at 337).
III. Discussion
"Murder is the killing of one human being by another with the requisite malevolent state of mind and without justification, excuse, or mitigation." Ross v. State, 308 Md. 337, 340, 519 A.2d 735, 736 (1987). The malevolent states of mind that qualify are: (1) the intent to kill, (2) the intent to do grievous bodily harm, (3) the intent to do an act under circumstances manifesting extreme indifference to the value of human life (depraved heart), or (4) the intent to commit a dangerous felony. Id. The General Assembly has determined that certain murders qualify as murder in the first degree, such as murders committed in the perpetration of enumerated felonies or any kind of willful, deliberate and premeditated killing. See Maryland Code, Article 27 §§ 407-410 (1957, 1996 Repl.Vol.) (setting forth the various circumstances in which a murder will be classified as murder in the first degree). Second-degree murder includes all other types of murder. See Code, Art. 27 § 411 ("All other kinds of murder shall be deemed murder in the second degree.").
To be guilty of the crime of attempt, one must possess "a specific intent to commit a particular offense" and carry out "some overt act in furtherance of the intent that goes beyond mere preparation." State v. Earp, 319 Md. 156, 162, 571 A.2d 1227, 1230 (1990); Bruce v. State, 317 Md. 642, 646, 566 A.2d 103, 104 (1989). For attempted second-degree murder, the *1227 State has the burden to prove "a specific intent to killan intent to commit grievous bodily harm will not suffice." Earp, 319 Md. at 164, 571 A.2d at 1231; see LaFave & Scott, CRIMINAL LAW, § 6.2 at 500-01 (2d ed. 1986) ("[O]n a charge of attempted murder it is not sufficient to show that the defendant intended to do serious bodily harm or that he acted in reckless disregard for human life.... [A]ttempted murder requires an intent to bring about the result described by the crime of murder (i.e., the death of another)."); Clark & Marshall, A TREATISE ON THE LAW OF CRIMES, § 4.08 (7th ed. 1967) ("To constitute an attempt to murder, specific intent to kill is necessary, and an intent to commit any other crime will not suffice."). One has committed second-degree attempted murder when he or she harbors a specific intent to kill the victim and has taken a substantial step toward killing the victim.
Harrison challenges his conviction for attempted second-degree murder, arguing that he did not possess the requisite intent to murder Cook because his target was Valentine. In support of this argument, Harrison relies on the agreed-upon facts, which state that Harrison "accidentally" struck the victim, Cook. Harrison contends that the term "accidentally" characterizes his state of mind at the time of the shooting, thereby nullifying the specific intent to kill the victim and obviating guilt of attempted second-degree murder.
The State responds that the term "accidentally" does not characterize Harrison's state of mind, but, rather, "accidentally" refers to the fact that the bullets, by accident, hit Cook instead of Valentine, the intended target. The State argues that the facts support the trial court's determination that Harrison had a specific intent to kill Valentine by shooting six bullets at him. This specific intent to kill, according to the State, should be attributed to Harrison for shooting Cook under two theories: "concurrent intent" and "transferred intent." As to the theory of "concurrent intent," the State argues that, by firing six shots to kill Valentine, Harrison intentionally created a "kill zone." Citing to the considered dicta explicated in Judge Chasanow's discussion for the Court majority in Ford v. State, 330 Md. 682, 625 A.2d 984 (1993), the State maintains that the theory of "concurrent intent" functions to apply Harrison's specific intent to kill to everyone in that zone, including Cook. Under the theory of "transferred intent," the State argues, Harrison's intent to kill Valentine transferred to Cook, the person who actually sustained injury.[13]
We first dispose of Harrison's argument that the term "accidentally" in the agreed statement of facts defines his mens rea at the time of the shooting. Harrison's reliance on that term is not persuasive. The term "accidentally" describes the outcome of Harrison's act, not his state of mind. Furthermore, in Harrison's statement to the police, which is incorporated by reference in the agreed statement of facts, Harrison admits that he intentionally fired his handgun at Valentine. When a police officer asked what happened, Harrison replied that he and a friend walked to the basketball court and "just started shooting in the direction of Valentine." The officer asked why, and Harrison responded, "Because he around there selling *1228 some dope .... He was told in the past not to hustle around here." From this evidence, as well as the agreed-upon statement that Harrison "fired six shots at a person [he] knew as Valentine," the trial judge reasonably could have inferred that the shooting was no accident. The trial judge's conclusion that Harrison had a specific intent to kill is supported by the evidence.
Harrison argues, nonetheless, that, even if he did maintain a specific intent to kill, it was directed at Valentine and not at Cook, the one who suffered the injury. Consequently, we must determine whether the necessary specific intent as against Cook could derive from Harrison's specific intent to kill Valentine; or in other words, does Harrison's specific intent to kill Valentine satisfy the requisite intent for attempted second-degree murder, when the actual victim (and who alone was named in the indictment) in this case was a bystander? The State contends that the theories of "concurrent intent" and "transferred intent" support its assertion that Harrison's specific intent to kill fulfills the intent element as against Cook.
A. Concurrent intent
The Court of Special Appeals upheld Harrison's conviction of attempted murder because a specific intent to murder Cook could be inferred under the theory of "concurrent intent." Harrison, 151 Md.App. at 662, 828 A.2d at 257. This theory emerged from the discussion in Ford v. State, 330 Md. 682, 625 A.2d 984 (1993), in which the Court expressed its disapproval of the use of "transferred intent" in cases where the defendant faced charges of attempted murder of a bystander. See LeEllen Coacher & Libby Gallo, Criminal Liability: Transferred and Concurrent Intent, 44 A.F.L.REV. 227, 235 (1998). The Ford Court discussed the doctrine of "concurrent intent" to "explain[ ] and justif[y]" the result in State v. Wilson, 313 Md. 600, 546 A.2d 1041 (1988), the case in which this Court held that "transferred intent" could be used to prove the specific-intent element of attempted murder of a bystander. Ford, 330 Md. at 716, 625 A.2d at 1000. Explaining the distinction between "transferred intent" and "concurrent intent," Judge Chasanow for the Court stated:
In transferred intent, the intended harm does not occur to the intended victim, but occurs instead to a second ... victim. The actual result is an unintended, unanticipated consequence of intended harm. For example, consider a defendant who shoots a single bullet at the head of A, standing with B and C. If the defendant misses A and instead kills B, the defendant's intent to murder A will be transferred to allow his conviction for B's murder. The intent is concurrent, on the other hand, when the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity.
Id. To further distinguish between the two theories, the Court offered a hypothetical example of the application of "concurrent intent":
[A]n assailant who places a bomb on a commercial airplane intending to harm a primary target on board ensures by this method of attack that all passengers will be killed. Similarly, consider a defendant who intends to kill A and, in order to ensure A's death, drives by a group consisting of A, B, and C, and attacks the group with automatic weapon fire or an explosive device devastating enough to kill everyone in the group .... When the defendant escalated his mode of attack from a single bullet aimed at A's head to a hail of bullets or an explosive *1229 device, the factfinder can infer that, whether or not the defendant succeeded in killing A, the defendant concurrently intended to kill everyone in A's immediate vicinity to ensure A's death. The defendant's intent need not be transferred from A to B, because although the defendant's goal was to kill A, his intent to kill B was also direct; it was concurrent with his intent to kill A.
Id. at 716-17, 625 A.2d at 1000-01. The Court summed up the rule of "concurrent intent" as follows: "Where the means employed to commit the crime against a primary victim create a zone of harm around that victim, the factfinder can reasonably infer that the defendant intended that harm to all who are in the anticipated zone." Id. at 717, 625 A.2d at 1001.[14]
The Ford Court then turned its attention to the facts of Wilson, which, according to the Court, "reached the right result" but for the wrong reasons. Retroactively applying the theory of "concurrent intent" to the facts in Wilson, the Court stated that the jury could have found that the defendant in that case intended to create a "kill zone" by firing multiple bullets and that "everyone in the path" of the bullets were intended targets. Id. at 717-18, 625 A.2d at 1001. The Court concluded: "[T]he bystander victim, was obviously in the ... direct line of fire and the evidence permitted finding concurrent intent to kill everyone in the path of the bullets." Id. at 718, 625 A.2d at 1001.[15]
The doctrine of "concurrent intent" also has found favor in several other jurisdictions. For example, using "concurrent intent," the Supreme Court of California, in People v. Bland, 28 Cal.4th 313, 121 Cal. Rptr.2d 546, 48 P.3d 1107 (2002), upheld attempted-murder convictions that arose out of a gang-related shooting resulting in the death of the intended victim and injury to two bystanders. Id. at 1120-21. Wilson, a member of the Rolling 20's Crips, was driving through a Long Beach neighborhood with two passengers when he encountered Bland and a friend, both members of the Insane Crips. Id. at 1110. Bland approached Wilson's car, began shooting into the vehicle, and, along with his friend, continued to shoot as the car started to drive away. Wilson died, and both of his passengers received non-fatal gunshot wounds. Id. During Bland's trial, the jury was instructed according to the doctrine of "transferred intent," after which Bland was convicted of first-degree murder of Wilson and attempted first-degree murder of the two injured bystanders. Id. at 1110-11.
The Supreme Court of California held that Bland's convictions for attempted murder could not be premised upon "transferred intent" because, in California, that theory did not apply to attempted murder. Id. at 1117. Nevertheless, the Court concluded that the convictions could rest upon the theory of "concurrent intent." After quoting Ford at length, the California court stated the facts before it "virtually compelled" an inference that Bland harbored a specific intent to kill all those in harm's way:
Even if the jury found that [Bland] primarily wanted to kill Wilson rather than *1230 Wilson's passengers, it could reasonably also have found a concurrent intent to kill those passengers when [Bland] and his cohort fired a flurry of bullets at the fleeing car and thereby created a kill zone. Such a finding fully supports attempted murder convictions as to the passengers.
Id. at 1119.
The court in Ruffin v. United States, 642 A.2d 1288, 1298 (D.C.1994) also applied a concurrent-intent analysis. In Ruffin, the defendant and four others fired multiple shots at an intended target, Younger. Id. at 1290. The shooting left Younger merely injured, but bullets also hit two bystanders, killing one and injuring the other. Id. at 1290. The defendant was convicted of three specific intent crimes, first-degree murder of the deceased bystander, Williams, and assault with intent to kill while armed on Younger and Walker, the injured bystander. Id. Holding that the assault-with-intent-to-kill conviction was sustainable under the doctrine of "concurrent intent," the court declared that, by firing ten to fifteen shots"a hail of bullets"at his intended victim, Ruffin and his cohort possessed a "concurrent intent to kill everyone in the path of the bullets," including the unintended victim who was in the "direct line of fire." Id. at 1298 (quoting Ford, 330 Md. at 717-18, 625 A.2d at 1001).
In United States v. Willis, 46 M.J. 258 (1997), the United States Court of Appeals for the Armed Forces also used "concurrent intent" to uphold an attempted-murder conviction. Willis was facing charges of attempted murder of his wife, so he concocted an elaborate plan to kill her as well as his aunt, whom he learned planned to testify against him. Id. at 259. On the day of a hearing in the case against him, Willis first shot and killed his wife. He then went to the base legal office, where he found his aunt, his uncle, and Captain Hatch, the Chief of Military Justice. The uncle tried to hold the office door closed, but because Willis was trying to force his way inside, the office door remained open by six inches. When Willis saw Captain Hatch between the six-inch gap, Willis fired one shot at him but missed. Willis then reached around the door, aimed his pistol behind the door where his aunt and uncle were, and fired three random shots, intending to kill his aunt. Id. Willis pled guilty to attempting to murder the aunt, uncle, and Captain Hatch.
On appeal, Willis challenged the plea of guilty to the attempted murder of the uncle, who was not his primary target. Id. The court, after explaining the doctrine of "concurrent intent" as discussed in Ford and Ruffin, stated that:
Under a concurrent-intent approach, [the court] infer[s] the intent when the result was the same as that intended or at least a natural and probable consequence of the intended result. As long as the defendant has the requisite intent for the intended crime, the defendant will be responsible for the natural and probable consequences of the act.
Id. at 261. The court held that Willis' actions were "sufficient to establish that he had the concurrent intent to kill both his aunt and his uncle." Id. Willis created a "kill zone" by shooting "behind the door in three different spots, moving his pistol randomly between the shots." Id. Therefore, according to the court, Willis was responsible for the "natural and probable consequences" of his act, including "the death or grievous bodily harm of whoever was behind the door." Id. at 262.
In concurrent-intent analyses, courts focus on the "means employed to commit the crime" and the "zone of harm around [the] victim." Ford, 330 Md. at 717, 625 A.2d at 1001. The essential questions, *1231 therefore, become (1) whether a fact-finder could infer that the defendant intentionally escalated his mode of attack to such an extent that he or she created a "zone of harm," and (2) whether the facts establish that the actual victim resided in that zone when he or she was injured.
As to the first question, courts have permitted an inference that the defendant created a kill zone when a defendant, like Harrison, fired multiple bullets at an intended target. In Wilson, the defendant and his brother fired "multiple bullets" from two handguns. Ford, 330 Md. at 718, 625 A.2d at 1001 (discussing Wilson, 313 Md. at 601, 546 A.2d at 1042). The defendant in Bland fired a "flurry of bullets," and in Ruffin, the defendant and his cohort fired ten or fifteen rounds, which the court described as "a hail of bullets." Bland, 121 Cal.Rptr.2d 546, 48 P.3d at 1119; Ruffin, 642 A.2d at 1298; see also Hunt v. United States, 729 A.2d 322, 326 (D.C.1999) (holding that by "unloading multiple `quick fire' shots" to hit the target, the defendant created a "kill zone" that "ensnared" the bystander); Walls v. United States, 773 A.2d 424, 434 (D.C. 2001) (holding that evidence of the defendant firing "several shots" permitted a jury inference that the defendant created a "zone of danger"); People v. Smith, 9 Cal. Rptr.3d 387 (Cal.App.2004) (allowing an inference of concurrent intent to kill the intended victim and unintended victim where the defendant fired a "single shot" at a moving vehicle containing the target and a bystander "in the line of fire"). Just three random shots directed behind a door gave rise to a permissible inference of a "killing zone" in Willis, 46 M.J. at 261-62. These methods of attack are similar to Harrison's six shots at Valentine. We conclude, therefore, that the facts support an inference that Harrison created a "kill zone" around Valentine and that Harrison had the specific intent to kill everyone inside of the zone.
The facts in this case, however, do not permit an inference that Cook, the unintended victim, inhabited the "kill zone" when Harrison's bullet hit him. Courts that have considered the issue all have relied on specific facts showing the location of the unintended victim either in relation to the intended victim or in relation to the defendant. In Bland, for example, the unintended victims occupied the same car as the intended victim when the defendant fired a hale of bullets at the car. Bland, 121 Cal.Rptr.2d 546, 48 P.3d at 1110. When, in Hunt, the defendant fired multiple "quick fire" shots inside the automobile in which the primary victim sat, the murdered bystander was standing right next to the car. 729 A.2d at 323. Also, in Willis, the court held that the unintended victim resided in the "kill zone" behind an office door where he and the intended victim tried to avoid the defendant's random gunshots. 46 M.J. at 261; see also Harvey, 111 Md.App. at 405, 434-35, 681 A.2d at 630, 645 (holding that, where the injured bystander was "in close proximity" to the intended target, the "evidence was sufficient to permit a finding that [the bystander] was in [the] `kill zone'"). The unintended victims in Ruffin occupied a car "in the vicinity of the shooting" and were in the defendant's "direct line of fire." 642 A.2d at 1290, 1298.
In the present case, however, the State's argument that Cook was in Harrison's "kill zone" at the time of the shooting lacks adequate support from the evidence. According to the agreed statement of facts, "in the fifteen hundred block of Clifton Avenue, [Cook] was standing and talking with friends when he was struck in the neck with a bullet." Although this statement shows generally where Cook was standing when he was shot, it and the *1232 remaining evidence provide no indication where Cook was in relation to Valentine or Harrison. A fact finder, let alone an appellate court, has no idea, based on this meager evidence, whether Cook stood in Harrison's direct line of fire, next to the intended victim, or at a distance from Harrison or his target, Valentine. Absent more specific evidence of Cook's location in relation to the shooter and the intended victim, no inference is permissible that Cook occupied the "kill zone" when he was struck by the bullet. Consequently, we disagree with Court of Special Appeals and conclude that the agreed statement of facts does not provide sufficient evidence to support a finding of "concurrent intent" on the part of Harrison.
This Court and the Court of Special Appeals have heretofore made clear that prosecutors risk acquittal when a not-guilty agreed statement of facts fails to support the legal theory upon which the State relies. See Bruno v. State, 332 Md. 673, 684, 632 A.2d 1192, 1197 (1993) (noting that the State "risk[s] an acquittal" by proceeding on a not-guilty agreed statement of facts that does not present sufficient evidence to support the crimes charged); Barnes v. State, 31 Md.App. 25, 28, 354 A.2d 499, 501 (1976) (stating that, even in a case based on an agreed statement of facts, "an accused must be acquitted if the evidence is not legally sufficient to sustain his conviction"). We renew that admonition today. If a prosecutor proceeds on a not-guilty agreed statement of facts, he or she should take care to assure that the statement contains evidence to support each element of the crime or crimes charged, or else acquittal necessarily will follow.