Although a foreseeable risk of death to a victim during a crime is a basis on which felony murder and coconspirator liability under the Pinkterton doctrine may be established, foreseeability is not commensurate with the conscious objective to cause death required for accessorial liability. The facts found included that Tamarius Maner purchased marijuana from James Caffrey. Caffrey stashed the money in his bedroom, remarking that he had saved $500 for a child he was expecting with Samantha Bright. Maner called Calvin Bennett. They later drove to Caffrey's apartment carrying loaded handguns. When Caffrey answered the door, a brief conversation ensued before Maner fatally shot Caffrey in the face. Maner and Bennett continued into the bedroom. Bennett put a gun to Bright's head, questioning her. Bright referred them to the dresser. Caffrey's mother, discovering her son, began screaming. Maner fired a shot, missing her as the men fled. Following a court trial, the panel, Cremins, Crawford and Schuman, Js., rendered a unanimous verdict finding Bennett guilty of felony murder, home invasion and first degree burglary. A majority found Bennett guilty of aiding and abetting murder. Bennett appealed. A majority of the Supreme Court reversed the judgment, in part, agreeing with Bennett's claim that there was insufficient evidence of intent to convict him of aiding and abetting murder. The evidence revealed little about the defendant's actions at critical periods—prior to arriving and following his arrival, before the shooting. The sum of the defendant's conduct after Maner shot Caffrey—both acts and omissions—did not provide a sufficient evidentiary basis to infer intent to kill. The fact that the killing did not deter the defendant in the planned burglary led to the reasonable inferences that the defendant was indifferent to Caffrey's death or death was a foreseeable consequence of the burglary. However, indifference is not intent. To find intent to kill under the circumstances would obliterate a critical distinction between accessorial liability and other theories of vicarious liability—felony murder and Pinkerton liability. Because the state did not advance a Pinkerton theory or prove beyond a reasonable doubt that the defendant intended to cause Caffrey's death, the conviction for murder as an accessory could not stand. Justice Norcott, joined by Justice Zarella, dissented, finding sufficient circumstantial evidence of intent.

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