                REPORTED

  IN THE COURT OF SPECIAL APPEALS

             OF MARYLAND

                 No. 2475

          September Term, 2013

______________________________________


        TYSHON LETEEK JONES

                      v.

         STATE OF MARYLAND

______________________________________

     Krauser, C.J.,
     Nazarian,
     Leahy,

                  JJ.
______________________________________

         Opinion by Krauser, C.J.
______________________________________

     Filed: April 29, 2015
       Accused of having participated, with four other men, in the robbery, shooting, and

killing of Julian Kelly, Tyshon Jones, appellant, was charged with first-degree murder,

armed robbery, robbery, the use of a handgun in the commission of a felony or a crime of

violence and, of particular relevance to the issue raised by this appeal, second-degree

murder with the intent to inflict serious bodily harm. A jury, in the Circuit Court for

Montgomery County, subsequently found him not guilty of first-degree murder,

second-degree murder with the intent to inflict serious bodily harm, armed robbery, and

robbery but was unable to reach a verdict as to the charges of first-degree felony murder

and the use of a handgun in the commission of a felony or a crime of violence.

Consequently, the Montgomery County circuit court granted a mistrial as to those two

charges.

       Although the State initially announced its intention to retry Jones for first-degree

felony murder, it later changed its mind, upon agreeing with Jones that there was no

underlying felony to support that charge. Consequently, the State requested that the circuit

court rule that, together with the handgun charge, second-degree felony murder based on

first-degree assault was a charge “pending” against Jones. Over Jones’s objection, the

circuit court so ruled. This interlocutory appeal, from that ruling, followed.

       However, because second-degree murder with the intent to inflict serious bodily

harm, the offense of which Jones was acquitted, and second degree felony murder based

on first-degree assault, the charge upon which the State now wishes to proceed, are the

same offense for double jeopardy purposes, we reverse.



                                             1
                                              I.

       Shortly before midnight on August 20, 2010, Julian Kelly was beaten, robbed, and

shot by a group of men while on his way home from work. This criminal episode began

when, according to witnesses, Kelly was surrounded by “maybe . . . five” men who began

“kicking and punching” him, upon his refusal to surrender his backpack and necklace.

After he was knocked to the ground, one of Kelly’s assailants stood over him and shot him

five times, three times in the torso and twice in the head, wounds from which Kelly died

several weeks later.

       Identified as one of Kelly’s assailants, Jones was tried before a jury, in the

Montgomery County circuit court, for his purported participation in Kelly’s robbery and

murder. At trial, the State advanced two different theories of the role Jones played in the

perpetration of those crimes. The first theory alleged that Jones, although not a participant

in the robbery and the beating, shot Kelly after mistaking him for someone else. The

second suggested that Jones had, in fact, participated in both the robbery and the beating

and had shot Kelly when Kelly had refused to relinquish his belongings. In response,

Jones, who did not testify at trial, attempted to establish through the testimony of several

witnesses that he had merely been a bystander to the incident and that it had been one of

Kelly’s assailants, not he, who had fired the fatal shots.

       At the close of evidence, the court instructed the jury on first-degree murder,

first-degree felony murder, second-degree murder with the intent to inflict serious bodily

harm, armed robbery, robbery, and the use of a firearm in the commission of a felony or a

crime of violence. With respect to first-degree felony murder, the court instructed the jury

                                              2
that, in order to convict Jones of that offense, it must find that Jones murdered Kelly

“during the commission” of an underlying felony and that, here, the underlying felony

could have been either armed robbery, robbery, or assault in the first degree.

       Section 2-201(a)(4) of the Criminal Law Article1 states that a murder “is in the first

degree” if it is “committed in the perpetration of or an attempt to perpetrate” a number of

enumerated felonies. Although robbery and armed robbery, two of the three offenses the

court below included in its instructions, could underlie a finding of first-degree felony

murder, first-degree assault cannot. Thus, both Jones and the State agree that that portion

of the circuit court’s instructions was an incorrect statement of the law.

       The jury found Jones not guilty of first-degree murder, second-degree murder with

the intent to inflict serious bodily harm, robbery, and armed robbery. But, as previously

noted, it was unable to reach a verdict on the charges of first-degree felony murder and the

use of a handgun in the commission of a felony or a crime of violence. When Jones moved

for a mistrial with respect to those charges, the court granted that motion.

       The State then informed Jones of its intention to retry him on the two verdictless

counts, that is, first-degree felony murder and the use of a handgun in the commission of a

felony or a crime of violence. Jones responded by moving for a judgment of acquittal as

to the first-degree felony murder charge,2 asserting that, since first-degree assault was not


       1
           Md. Code Crim. Law § 2-201(a)(4) (2002, 2012 Repl. Vol.)
       2
         Jones also moved to dismiss the use of a handgun charge based on the principle of
“collateral estoppel,” a motion that the circuit court denied. On appeal, however, Jones
does not raise any contentions related to the denial of that motion and concedes that he may
be retried on the use of a handgun charge.
                                              3
a “predicate felony” for a charge of first-degree felony murder, his acquittal on the charges

of robbery and armed robbery meant that there was no felony that could serve as the

underlying offense for the charge of first-degree felony murder. While conceding in its

opposition to Jones’s motion that it could not retry Jones on first-degree felony murder, the

State insisted that it could retry him on the charge of second-degree felony murder based

on first-degree assault because, though first-degree assault is not an underlying felony for

a charge of first-degree felony murder, it can serve as an underlying felony for a charge of

second-degree felony murder.

       After the court, at the hearing that ensued on Jones’s motion, granted a judgment of

acquittal as to first-degree felony murder, it turned to the State’s request to retry Jones on

the charge of second-degree felony murder based on first-degree assault. Jones asserted

that the constitutional prohibition against double jeopardy barred the State from proceeding

on such a charge. The circuit court, however, flatly rejected that claim. It stated that

second-degree felony murder based on first-degree assault was a “viable” charge as it arose

“out of the facts of this case” and because Jones had “not been acquitted” of it or of the

underlying offense of first-degree assault. Consequently, the court declared that “double

jeopardy would not bar the prosecution” of Jones on the charge of second-degree felony

murder based on first-degree assault. This interlocutory appeal followed, after which the

circuit court stayed all proceedings pending our resolution of this issue.

                                             II.

       Jones contends that his acquittal of second-degree murder with the intent to inflict

serious bodily harm bars the State from re-prosecuting him for second-degree felony

                                              4
murder based on first-degree assault. He maintains that, since all of the elements of

second-degree murder with the intent to inflict serious bodily harm are to be found in the

elements of second-degree felony murder based on first-degree assault, and because only

one of those two offenses includes an element that the other does not, the two offenses

must be deemed to be the same for the purposes of double jeopardy, and, in that event, his

acquittal of one offense would bar a subsequent prosecution for the other.

       Preliminarily, we note that there is no dispute as to the propriety of this interlocutory

appeal, given that a defendant “has the right to immediate appellate review of an adverse

ruling concerning a double jeopardy claim.” Kendall v. State, 429 Md. 476, 484 n.10

(2012). And, in conducting that review, we give “no deference to the lower court’s

resolution of the matter.” Scriber v. State, 437 Md. 399, 407 (2014) (citing Giddins v.

State, 393 Md. 1, 15 (2006)). In short, we perform a review de novo.

       With that guiding principle in mind, we begin our analysis by noting that the Fifth

Amendment to the United States Constitution precludes any person from being “twice put

in jeopardy of life or limb.” U.S. Const. amend V. In other words, an accused cannot be

made “twice accountable for the same offense.” State v. Long, 405 Md. 527, 536 (2008),

a prohibition that is applicable to the states “through the Fourteenth Amendment,” Scriber,

437 Md. at 407.      What is more, “Maryland common law provides well-established

protections for individuals against being twice put in jeopardy.” Id. at 408.

       Specifically, the prohibition against double jeopardy bars “multiple punishments

and trials for the same offense.” Long, 405 Md. at 536 (citing United States v. Wilson, 420

U.S. 332, 343 (1975)). The “appropriate test for determining whether [two] different

                                               5
statutory or common law offenses” are to be “treated as the same offense for double

jeopardy purposes” is the “required evidence test.”3 Holbrook v. State, 364 Md. 354, 369–

70 (2001). That test “focuses upon the evidence necessary to sustain a conviction on each

offense.” Thomas v. State, 277 Md. 257, 262 (1976). If each offense “requires proof of a

fact which the other does not, or . . . if each offense contains an element which the other

does not, the offenses are not the same for double jeopardy purposes even though arising

from the same conduct or episode.” Id. at 267. But, of particular relevance to the issue

before us in this appeal, two offenses are considered “the same within the meaning of the

prohibition against double jeopardy,” and thus successive prosecutions are barred, “where

only one offense requires proof of an additional fact, so that all elements of one offense are

present in the other.” Id.

       In the instant case, the question before us is whether the offense of second-degree

murder with the intent to inflict serious bodily harm—of which Jones was acquitted—and

the offense of second-degree felony murder based on first-degree assault—on which the

State now wishes to proceed—must be “deemed to be the same” for “double jeopardy

purposes,” under the required evidence test. To answer this question, we must decide

whether all the elements of the latter offense are elements of the former.




       3
         This test was first set forth by the Supreme Court of the United States in
Blockburger v. United States, 284 U.S. 299, 304 (1932). For that reason, the “required
evidence test” is sometimes referred to as the “Blockburger test.” See, e.g., Holbrook v.
State, 364 Md. 354, 369 n.9 (2001). Other names for this same test include the “same
evidence test,” the “elements test,” and the “same elements test.” Id.
                                              6
                                             III.

                                              A.

       Under section 2-204(a) of the Criminal Law Article, a “murder that is not in the first

degree . . . is in the second degree.”4 Md. Code Crim. Law § 2-204(a) (2002, 2012 Repl.

Vol.) (“CL”). Although the statute itself does not further define that offense, there are,

according to Maryland decisional law, “four different types” of second-degree murder.

They are: first, the killing of another person, other than by poison or lying in wait, with the

intent to kill but without the deliberation and premeditation required for first-degree

murder; second, the killing of another person with the intent to inflict such serious bodily

harm that death would be the likely result; third, “depraved heart murder,” which is to say,

“a killing resulting from ‘the deliberate perpetration of a knowingly dangerous act with

reckless and wanton unconcern and indifference as to whether anyone is harmed or not’”;

and fourth, “murder committed in the perpetration of a felony other than those enumerated

in the first-degree murder statutes.” Thornton v. State, 397 Md. 704, 721–22, 721 n.6

(2007).

       The second of these four “types” of second-degree murder was the one on which

the jury was instructed at Jones’s trial, namely, second-degree murder with the intent to

inflict serious bodily harm. Although this type of second-degree murder is a specific-intent

crime, it does not require the State to prove a “conscious or purposeful design” on the part


       4
          A murder is “in the first degree if it is (1) a deliberate, premeditated, and willful
killing; (2) committed by lying in wait; (3) committed by poison; or (4) committed in the
perpetration of or an attempt to perpetrate” specific enumerated felonies, which include
“robbery” and “armed robbery.” CL § 2-201(a).
                                              7
of the defendant “to kill the victim,” but only a specific intent to inflict “serious” or

“grievous bodily harm”; in other words, the intent “to cause such severe harm that death

would be the likely result, not merely a possible result,” of the defendant’s intentional

conduct. Id. at 730–31 (emphasis in original). That is to say, “a defendant should only be

held liable” for second-degree murder with the intent to inflict serious bodily harm “if death

would be the likely result of the harm he [or she] intended.” Id. at 730. To ascertain that

“intent,” we employ an objective standard, specifically: whether “a reasonable person,

under the circumstances,” could or should have “foreseen that death would likely ensue as

a result of his or her conduct.” Id. at 713.

       In sum, the elements of second-degree murder with the intent to inflict serious bodily

harm, as articulated by the Court of Appeals, are: first, that the defendant’s conduct caused

the victim’s death, and, second, that the defendant, at the time he engaged in the conduct,

intended to inflict such serious bodily harm that the victim’s death would be the likely

result of the defendant’s conduct.5


       5
         The Maryland Criminal Pattern Jury Instruction for second-degree murder
provides:

              Second degree murder is the killing of another person with
              either the intent to kill or the intent to inflict such serious bodily
              harm that death would be the likely result. Second degree
              murder does not require premeditation or deliberation. In order
              to convict the defendant of second degree murder, the State
              must prove:

              (1) that the defendant caused the death of (name); and

                                                            (continued…)

                                                8
                                              B.

       We next turn to the offense for which the State now wishes to prosecute Jones:

second-degree felony murder based on first-degree assault. Second-degree felony murder,

the fourth of the four “types” of second-degree murder recognized under Maryland law,

Thornton, 397 Md. at 721 n.6, is a homicide “committed in the perpetration of a felony

other than one enumerated in the first degree murder statute,” Fisher v. State, 367 Md. 218,

225 (2001), which we shall refer to as either the “underlying felony” or the “predicate

felony.” Recognizing second-degree felony murder as an offense in Maryland furthers the

“primary purpose of the modern felony murder rule,” explained the Court of Appeals, by

punishing as murder “a homicide resulting from dangerous conduct in the perpetration of

a felony, even if the defendant did not intend to kill.” Id. at 262. “If the felonious conduct,”

that is, the underlying felony or predicate felony, “under all of the circumstances, made

death a foreseeable consequence, it is reasonable,” Maryland’s highest Court excogitated,

“for the law to infer from the commission of the felony under those circumstances the

malice that qualifies the homicide as murder.” Id. The foreseeability of death “is




       (continued…)

              (2) that the defendant engaged in the deadly conduct either with
              the intent to kill or with the intent to inflict such serious bodily
              harm that death would be the likely result.

       MPJI-Cr. 4:17.1.

                                               9
determined by the nature of the crime or by the manner in which it was perpetrated in a

given set of circumstances.” 6 Id. at 263 (emphasis in original).

       Subsequently, in Roary v. State, the Court of Appeals was asked to determine

whether a first-degree assault that required, under section 3-202(a)(1) of the Criminal Law

Article,7 the intent to “cause or attempt to cause serious physical injury to another,” was a

“proper underlying felony to support a second-degree felony-murder conviction.” 385 Md.

217, 230 (2005).     In concluding that the assault in that case—specifically, Roary’s

repeatedly dropping a 20–30 pound boulder on the victim’s head—could support such a

conviction, the Court stressed that, to secure a conviction for second-degree felony murder,

the underlying felony must be “sufficiently dangerous to life to justify application” of the

felony-murder doctrine. Id. at 222, 229–30. The Roary Court then observed that a

first-degree assault that “intentionally cause[s] or attempt[s] to cause serious physical

injury to another” and that “creates a substantial risk of death” is “undoubtedly dangerous

to human life” and that the “manner in which” the particular assault in that case had been

committed, that is, by repeatedly dropping a boulder on the victim’s head, was “also clearly

dangerous to human life.” Id. at 230. The Court ended its discussion of this issue by stating



       6
         In Fisher, the Court of Appeals was asked to decide whether child abuse could be
an underlying felony for the offense of second-degree felony murder. The Court concluded
that the “child abuse of the character and degree described in the evidence” in that case
was “inherently dangerous” and thus it could properly serve as an underlying felony for
that offense. Id. at 263.
       7
         Md. Code Crim. Law § 3-202(a)(1) (2002, 2012 Repl. Vol.). As the Roary Court
recognized, “[a]ssault in the first degree also prohibits a person from committing an assault
with a firearm,” under section 3-202(a)(2) of the same Article. Id. at 230 n.9.
                                             10
that “an assault in the first degree, when committed in a manner inherently dangerous to

human life, as in this case, may be a predicate felony for second-degree felony-murder.”

Id. at 236.

       Following the Roary decision, the Maryland State Bar Association’s Standing

Committee on Pattern Jury Instructions prepared an instruction on second-degree felony

murder. See Comment, MPJI-Cr 4:17.7.2 (2006). The instruction is divided into two

“parts.” The first, “Part A,” is captioned “Second Degree Felony Murder—Inherently

Dangerous Nature of Felony: First Degree Assault” and reads as follows:

              The defendant is charged with the crime of second degree
              felony murder. Felony murder does not require the State to
              prove that the defendant intended to kill the person who was
              killed. In order to convict the defendant of second degree
              felony murder, the State must prove:

              (1) that [the defendant] committed the crime of first degree
                  assault;

              (2) that [the defendant] killed (name); and

              (3) that the act resulting in the death of (name) occurred during
                  the first degree assault.

              To convict the defendant of first degree assault, the State must
              prove:

              (1) that the defendant intentionally caused serious physical
                  injury to (name); and

              (2) that the injury was not [consented to by (name)] [legally
                  justified].




                                             11
              For second degree felony murder, serious physical injury
              means injury that creates a substantial and foreseeable risk of
              death.

       MPJI-Cr. 4:17.7.2A.

       The “Notes on Use” that accompany this pattern jury instruction advise the circuit

courts to give Part A of the instruction “if the defendant is charged with second degree

felony murder and the predicate felony is first degree assault under Md. Crim. Law Code

Ann. § 3-202(a)(1)”; that is, a first-degree assault committed by “intentionally caus[ing] or

attempt[ing] to cause serious physical injury to another.” The “Notes on Use” further

advise that, if the defendant is “charged with second degree felony murder and the predicate

felony is one that is inherently dangerous to human life because of the way it was

committed,” the circuit courts should give “Part B” of the pattern jury instruction. Part B

is captioned “Second Degree Felony Murder—Inherently Dangerous Manner in which

Felony was Perpetrated” and states:

              The defendant is charged with the crime of second degree
              felony murder. Felony murder does not require the State to
              prove that the defendant intended to kill the person who was
              killed. In order to convict the defendant of second degree
              felony murder, the State must prove:

              (1) that [the defendant] [[committed] [attempted to commit]]
                  (identify the crime), a felony;

              (2) that the way in which (identify the crime) was committed
                  or attempted, under all of the circumstances, created a
                  reasonably foreseeable risk of death or of serious physical
                  injury likely to result in death;

              (3) that as a result of the way in which (identify the crime) was
                  committed or attempted, (name) was killed; and


                                             12
              (4) that the act resulting in the death of (name) occurred during
                  the [[commission] [attempted commission] [escape from
                  the immediate scene]] of the (identify the crime).

       MPJI-Cr. 4:17.7.2B.

       Both at the hearing below and on appeal, Jones has addressed only the elements of

second-degree felony murder based on first-degree assault as they are set out in Part A of

the pattern jury instructions. In other words, his focus has been solely on the elements of

that offense when it is based on a first-degree assault committed by intentionally causing a

serious physical injury to another. But the State could arguably prosecute Jones, at his

retrial, for second-degree felony murder predicated on either form (or both forms) of

first-degree assault, that is, a first-degree assault committed by intentionally causing or

attempting to cause “serious physical injury to another,” or a first-degree assault committed

by “commit[ting] an assault with a firearm.” CL § 3-202(a)(1)–(2).

       If the State proceeds on a theory of second-degree felony murder based on

first-degree assault where the underlying first-degree assault was committed by

intentionally causing, or attempting to cause, a serious physical injury to the victim, then,

in accordance with the “Notes on Use” accompanying the pattern jury instructions, Part A

of the second-degree felony murder instruction would apply. In that event, the State would

be required to prove: first, that Jones committed a first-degree assault; second, that Jones

killed Kelly; and, third, that the act that killed Kelly occurred during Jones’s commission

of the first-degree assault. See MPJI-Cr 4:17.7.2A. Furthermore, to prove that Jones

committed a first-degree assault that would be “sufficiently dangerous to life to justify

application” of the felony-murder doctrine, Roary, 385 Md. at 229–30, the State would

                                             13
have to show that Jones “intentionally caused serious physical injury” to Kelly, that is, an

“injury that creates a substantial and foreseeable risk of death,” MPJI-Cr 4:17.7.2A.

       On the other hand, the State could arguably proceed, at Jones’s retrial, on a theory

of second-degree felony murder based on first-degree assault where the underlying

first-degree assault was an assault committed with a firearm. Because no Maryland court

has yet specifically addressed this form of second-degree felony murder, it is incumbent

upon us to determine, now, what elements the State must prove to convict Jones of that

offense.

       We begin that determination by reiterating that, under Maryland law, an underlying

felony can support a conviction for second-degree felony murder when it is committed in

such a manner that it is dangerous to life. See, e.g., Fisher, 367 Md. at 263. In the instant

case, Jones purportedly used a firearm to shoot Kelly five times—three times in the torso,

and two times in the head. Just as the Court of Appeals held, in Roary v. State, that a

first-degree assault was dangerous to life “by the manner in which it was perpetrated” when

it was committed by dropping a boulder onto a victim’s head, we conclude that a

first-degree assault is committed in a manner that is “dangerous to life” and “made death a

foreseeable consequence” when it is committed by using a firearm to shoot the victim

multiple times, including twice in the head. 385 Md. at 229–30. See also Evans v. State,

28 Md. App. 640, 705–06 (1975) (explaining that “the intent to kill or the intent to do

grievous bodily harm” may be inferred from the use of a “deadly weapon directed at a vital

part of the human body”); Jenkins v. State, 146 Md. App 83, 135 (2002), rev’d on other



                                             14
grounds 375 Md. 284 (2003) (stating that “an intent to cause serious physical injury can be

inferred” from the use of a firearm to commit a first-degree assault).

       As the “Notes on Use” accompanying the pattern jury instructions make clear, Part

B of the pattern jury instructions sets forth the elements of the offense of second-degree

felony murder predicated on an underlying felony “that is inherently dangerous to human

life because of the way it was committed.” So if the State chooses to proceed on a theory

of second-degree felony murder based on first-degree assault, where the underlying

first-degree assault was an assault committed with a firearm, it would be required to prove:

first, that Jones committed, or attempted to commit, the felony of first-degree assault with

a firearm; second, that the way in which the assault with a firearm was committed created

a “reasonably foreseeable risk of death or of serious physical injury likely to result in

death”; third, that Kelly was killed as a result of Jones committing or attempting an assault

with a firearm; and fourth, that the act resulting in Kelly’s death occurred during the

commission, attempted commission, or escape from the scene of that felony.               See

MPJI-Cr 4:17.7.2B.

                                            IV.

       Having identified the elements of the offenses of second-degree murder with the

intent to inflict serious bodily harm and second-degree felony murder based on first-degree

assault, we now apply the “required evidence test” to determine whether those offenses are

the same for double jeopardy purposes. As we stated above, two offenses are “deemed to

be the same for double jeopardy purposes” when “only one offense requires proof of an

additional fact, so that all elements of one offense are present in the other.” Thomas, 277

                                             15
Md. at 267. We believe that all the elements of the offense of second-degree murder with

the intent to inflict serious bodily harm are elements of the offense of second-degree felony

murder based on first-degree assault, and thus the two offenses qualify as the same offense

under the Double Jeopardy Clause.

       As we previously explained, second-degree murder with the intent to inflict serious

bodily harm requires proof that the defendant intended to cause such severe harm that the

victim’s death would be the likely result of the defendant’s actions and that the defendant’s

intentional conduct did, in fact, cause the victim’s death. Thornton, 397 Md. at 730, 733.

Second-degree felony murder based on first-degree assault requires, using admittedly

different words, proof of these same elements. To prove the commission of that offense,

the State must show that the defendant’s intentional conduct created either “a substantial

and foreseeable risk of death” or “reasonably foreseeable risk of death or of serious

physical injury likely to result in death” and that the victim died as a result of the

defendant’s conduct. MPJI-Cr. 4:17.7.2A–B.

       Although, as noted, the two offenses do not use precisely the same words to describe

the degree of bodily harm that must result from the defendant’s intentional conduct, their

descriptions of that harm are essentially the same. The injury, which second-degree murder

with the intent to inflict serious bodily harm addresses, is an injury to the victim that is so

serious that death would be the likely result. Such an injury is the same as an injury that

creates “a substantial and foreseeable risk of death” or a “serious physical injury likely to

result in death,” as required for a conviction for second-degree felony murder based on

first-degree assault.

                                              16
       Having concluded that the two offenses address the infliction of a potentially mortal

injury, we must now determine whether either of the offenses, or both of them, include an

element that the other does not have, that is to say, whether each offense “requires proof of

a fact which the other does not.” Scriber, 437 Md. at 408. And, in this instance, only one

of the offenses—second-degree felony murder based on first-degree assault—requires

proof of a fact that the other offense—second-degree murder with the intent to inflict

serious bodily harm—does not. Although both offenses require proof that the defendant’s

intentional conduct caused the victim’s death and that the defendant’s conduct was so

dangerous to life that it made death a foreseeable result, second-degree felony murder

based on first-degree assault goes on to require proof of an additional element, that is, that

the defendant committed or attempted to commit the felony of first-degree assault, either

by causing or attempting to cause serious physical injury to another or by committing an

assault with a firearm. The reverse, however, is not true. Second-degree murder with the

intent to inflict serious bodily harm does not require proof of an element that is not present

in the offense of second-degree felony murder based on first-degree assault. Indeed, to

prove all of the elements of second-degree felony murder based on first-degree assault, the

State must first prove all the elements of second-degree murder with the intent to inflict

serious bodily harm.

       In short, the offenses at issue here must, under the required evidence test, be deemed

to be the same for double jeopardy purposes. A subsequent prosecution on the charge of

second-degree felony murder based on first-degree assault would therefore violate the



                                             17
prohibition against double jeopardy, and the circuit court erred in concluding that a

prosecution of Jones on that charge could proceed.



                                        JUDGMENT OF THE CIRCUIT COURT
                                        FOR     MONTGOMERY        COUNTY
                                        REVERSED.    CASE REMANDED TO
                                        THAT    COURT    FOR    FURTHER
                                        PROCEEDINGS CONSISTENT WITH
                                        THIS OPINION. COSTS TO BE PAID BY
                                        MONTGOMERY COUNTY.




                                           18
