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(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

O'HERN, J., writing for a majority of the Court.

    The question in this case is whether a defendant may be convicted of felony murder even though acquitted of the underlying felony of aggravated arson.

    Grey was a low-level drug dealer who worked in Newark with another dealer named Marvin Jenkins. After a dispute about stolen drugs, Jenkins used gasoline to start a fire in a boarded-up house. Jenkins and Grey erroneously thought the person who they suspected of stealing the drugs was in the house. Three homeless persons were killed in the fire. Grey later admitted to acting as a lookout for Jenkins as he started the fire.

    Grey and Jenkins were charged with one count of second-degree conspiracy to commit aggravated arson; one count of second-degree aggravated arson; three counts of murder; three counts of felony murder; and one count of third-degree terroristic threats. They were tried separately.

    The jury convicted Grey of second-degree conspiracy to commit aggravated arson and three counts of felony murder, but found him not guilty of murder, aggravated arson, or terroristic threats. Grey moved to set aside the felony murder verdicts, arguing that he could not be convicted of felony murder without being convicted of the predicate felony of aggravated arson. (Conspiracy to commit aggravated arson is not a basis for a conviction of felony murder.) The trial court denied the motion and sentenced Grey to forty-five years imprisonment with thirty years of parole ineligibility on the three felony murder counts.

    The Appellate Division affirmed Grey's conviction and sentence, reasoning that consistent verdicts are not required. It found that a reasonable jury could have concluded that Grey had aided Jenkins in the arson and thus be responsible for the felony-murder as an accomplice, but nevertheless could have declined to convict Grey of aggravated arson due to compromise, mistake or leniency.

    The Supreme Court granted Grey's petition for certification limited to the issue of inconsistent verdicts.

HELD: The unusual circumstances in the sequence and delivery of the instructions to the jury led the jury to predicate its conviction of felony murder on its conviction of conspiracy to commit aggravated arson, which is not permitted. The felony murder convictions cannot stand.

1. The Court agrees with the logic of federal decisions holding that inconsistent verdicts in criminal matters are permitted so long as the evidence is sufficient to support a conviction on the substantive offense beyond a reasonable doubt (the Dunn/Powell rule). Such a verdict does not necessarily indicate that the jury was unconvinced of Grey's guilt, but might be the result of leniency or nullification. (pp. 6-9)

2. The Dunn/Powell rule, however, applies only when the reason for the inconsistent verdicts cannot be determined and one must speculate as to whether the verdicts resulted from juror lenity, compromise, or mistake. There is virtually no uncertainty as to the cause for the inconsistent verdicts in this case. (pp. 9-10)

3. The jury charge here led the jury to erroneously believe that Grey could not be convicted of aggravated arson unless he set the fire himself (as opposed to being guilty as an accomplice). The charge also failed to instruct that conspiracy to commit aggravated arson could not suffice as the predicate felony to the felony-murder charge. Having acquitted Grey of the aggravated arson charge, the jury must have concluded that the conspiracy to commit aggravated arson would suffice as the predicate felony to the felony-murder charge. (pp. 10-14)

4. The jury might have convicted Grey as an accomplice to arson if properly charged, but the Court cannot substitute its interpretation of the verdict for the jury's. The jury simply did not convict Grey of arson. The sequence of events here leads to one conclusion -- the jury undoubtedly relied on an improper predicate felony, and thus did not properly convict Grey. A verdict based on an improper predicate cannot stand. (pp. 15-16)

5. In felony-murder cases, courts should instruct juries that they may not convict a defendant of felony murder unless they convict defendant of the underlying offense (or an attempt to commit the offense) that is a predicate to the felony-murder conviction. The Court requests its Committee on Model Criminal Jury Charges to consider any required revisions of the Model Charge. (pp. 16-17)

    Judgment of the Appellate Division upholding the conviction of three counts of felony murder is REVERSED. The matter is REMANDED for resentencing on the conviction of second-degree conspiracy to commit aggravated arson.

     JUSTICE COLEMAN, concurring in part and dissenting in part, in which JUSTICES POLLOCK and GARIBALDI join, is of the view that to avoid the application of the Dunn/Powell rule, the majority speculates that the jury concluded the conspiracy conviction would suffice as the predicate felony to the felony-murder charge. The jury was properly instructed on accomplice liability, and there was credible evidence to support a finding that Grey was guilty as an accomplice of aggravated arson and felony murders beyond a reasonable doubt. Despite this overwhelming evidence, the jury found Grey not guilty of the predicate offense. The conclusion is inescapable that the verdicts of not guilty of aggravated arson and guilty of felony murder are inconsistent. Inconsistent verdicts should be permitted unless the verdict is "irrationally inconsistent" -- that is, not reasonably supported by the evidence. Such is not the case here. He concurs with the majority's holding that in the future, trial courts should instruct juries in compound-felony cases that the jury must first convict on the predicate felony before convicting on the compound offense.

     CHIEF JUSTICE PORITZ and JUSTICES HANDLER and STEIN join in JUSTICE O'HERN'S opinion. JUSTICE COLEMAN has filed an opinion concurring in part and dissenting in part in which JUSTICES POLLOCK and GARIBALDI join.

                         SUPREME COURT OF NEW JERSEY
                             A- 1 September Term 1996

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

        v.

ROOSEVELT GREY,

    Defendant-Appellant.

        Argued January 30, 1996 -- Reargued September 25, 1996
        Decided December 11, 1996

On certification to the Superior Court, Appellate Division, whose opinion is reported at 281 N.J. Super. 2 (1995).

Mark H. Friedman, Assistant Deputy Public Defender, argued the cause for appellant (Susan L. Reisner, Public Defender, attorney).

Marcy H. Geraci, Deputy Attorney General, argued the cause for respondent (Peter G. Verniero, Attorney General of New Jersey, attorney).

    The opinion of the Court was delivered by
O'HERN, J.
    The defendant has been convicted of second-degree conspiracy to commit aggravated arson. N.J.S.A. 2C:5-2; N.J.S.A. 2C:17-1a. The question is whether he may be convicted of felony murder even though acquitted of the underlying felony of aggravated arson. We find that unusual circumstances in the sequence and delivery

of the instructions to the jury led the jury to predicate its conviction of felony murder on its conviction of conspiracy to commit aggravated arson. A conviction of felony murder, however, is not permitted on that basis. N.J.S.A. 2C:11-3a(3).

told Grey that this was not the first time Bellinger had stolen from him, and said that he would "catch" Bellinger.
    The following afternoon Jenkins and Grey resumed their search for Bellinger. When they did not find him, the pair separated. At around midnight that night, Grey met Jenkins on the street. Jenkins told Grey that he believed Bellinger was staying at 19 Vanderpool Street, a nearby boarded-up house.
    Jenkins then drove a short distance to a corner gas station. From the street, Grey watched Jenkins take a red container from the trunk of his car, fill it with gas, and then put it back in the trunk. Jenkins drove alone to the house in which Bellinger was supposedly staying and parked behind it. Grey joined Jenkins on foot. Jenkins took the container out of his trunk and told Grey to "watch out" and to make sure no one came into the lot behind the house. Jenkins entered the house, carrying the container that he had filled with gas.
    Jenkins was in the house less than ten minutes. Grey remained in the lot keeping watch. Grey saw Jenkins leave the house, but he no longer had the container with him and was rubbing his hands together. Grey thought Jenkins was attempting to get the smell of gas off his hands. Jenkins told Grey that they would meet again later. Jenkins then left in his car.
    Grey walked to his mother's house, which is located directly behind 19 Vanderpool Street. He stood on the porch and watched the other house for about three or four minutes until he saw a "big clog of smoke" coming from it. Grey then went to bed.

    Newark firefighters, called to the burning house at about two that morning, detected the smell of gasoline upon entering the house. Before the firefighters were able to extinguish the fire, it had completely destroyed the rear parts of the house. They found the bodies of three homeless persons in the house. Investigators concluded that arson was the cause of the fire. Bellinger was not in the house during the fire.
    Investigators subsequently learned that someone named "Akbar" had come to the Bellinger home on the night of the fire and had been looking for Bellinger. Six months after the fire, detectives began to search for Grey as being that person.
    At first, Grey denied knowing anything about the fire. He later offered to disclose to the police what he knew in exchange for reward money. Grey was taken to the Essex County Prosecutor's Office Arson Unit in East Orange and advised of his Miranda rights. Grey told the police that he worked for Jenkins, that Jenkins had started the fire, and that he had served as a lookout during the fire.
    In a later written statement, Grey admitted that prior to the fire he knew that Jenkins intended to set fire to the house. Grey said that Jenkins told him that Bellinger would be in the house. When asked why he acted as Jenkins's lookout, Grey responded that he "was a follower."
    An Essex County grand jury charged Grey and Jenkins each with one count of second-degree conspiracy to commit aggravated arson (the burning of an occupied structure or building); one

count of second-degree aggravated arson; three counts of murder; three counts of felony murder; and one count of third-degree terroristic threats.
    Grey and Jenkins were tried separately. The jury convicted Grey of second-degree conspiracy to commit aggravated arson and three counts of felony murder, but found him not guilty of murder, second-degree aggravated arson, or third-degree terroristic threats.
    Grey moved to set aside the felony-murder verdicts. He argued that the jury verdicts were inconsistent, because he was convicted of felony murder without being convicted of the predicate felony of aggravated arson. The State countered that the proof required for accomplice liability was essentially the same as that for the substantive crime of conspiracy to commit aggravated arson. Thus, the same conduct was required for conviction as either an accomplice or a coconspirator, thereby establishing the predicate for the felony murder convictions.
    The State further argued that the inconsistent verdicts were the result of the jurors' confusion about the trial court's charge, which seemed to imply that Grey could be guilty of aggravated arson only if he acted as a principal, meaning that he alone or in concert with Jenkins actually set fire to the house. In any event, the State contended, New Jersey permits juries to hand down inconsistent verdicts.
    The trial court denied Grey's motion. It sentenced Grey to concurrent terms of forty-five years of imprisonment with thirty

years of parole ineligibility on the three felony murder counts. It merged the conspiracy conviction with the first felony murder conviction.     
    On appeal, the Appellate Division affirmed the conviction and sentence. The court reasoned that consistent verdicts are not required by New Jersey law. It found that a reasonable jury could have concluded that Grey had aided Jenkins in the commission of arson and thus be responsible for the felony-murder as an accomplice, but nevertheless could have declined to convict Grey of aggravated arson due to compromise, mistake, or lenity. State v. Grey, 281 N.J. Super. 2 (App. Div. 1995). We granted defendant's petition for certification, limited to the issue of inconsistent verdicts. 142 N.J. 452 (1995).

tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other." Id. at 393, 52 S. Ct. at 190, 76 L. Ed. at 359.
    United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed.2d 461 (1984), reaffirmed this rule. In Powell the jury convicted the defendant of using a telephone to facilitate a conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute, but acquitted the defendant of conspiracy and possession charges. The defendant argued that the verdicts were inconsistent since she could not have facilitated either possession or a conspiracy to possess when she was acquitted on the underlying possession and conspiracy charges. The Supreme Court unanimously disagreed, saying that "[i]t is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense [the facilitating offense], and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense [the conspiracy and possession offenses]." Id. at 65, 105 S. Ct. at 476, 83 L. Ed. 2d at 468.     
    The Dunn and Powell decisions are not binding on us but we agree with their logic. In State v. Ingenito, 87 N.J. 204 (1981), the Court observed that
        [t]he responsibility of the jury in [determining] . . . guilt or innocence, is so pronounced and preeminent that we accept inconsistent verdicts that accrue to the benefit of a defendant. Indeed, a jury has the prerogative of returning a verdict of innocence in the face of overwhelming evidence of guilt. It may also refuse to

return a verdict in spite of the adequacy of the evidence. This is indicative of a belief that the jury in a criminal prosecution serves as the conscience of the community and the embodiment of the common sense and feelings reflective of society as a whole.    

            [Id. at 211-12 (citations omitted).]

See also State v. Crisantos (Arriagas), 102 N.J. 265 (1986) (stating criminal jury may return illogical or inconsistent verdicts that would not be tolerated in civil trials). So long as the evidence is sufficient to support a conviction on the substantive offense beyond a reasonable doubt, such verdicts are normally permitted. State v. Petties, 139 N.J. 310 (1995). In State v. Kamienski, 254 N.J. Super. 75 (App. Div.), certif. denied, 130 N.J. 18 (1992), the court found that an acquittal of the charge of conspiracy to rob or to murder did not legally preclude a conviction for murder and felony murder. The court reasoned that a jury could find accomplice liability independent of whether a conspiracy existed. And in State v. Mangrella, 214 N.J. Super. 437 (App. Div. 1986), certif. denied, 107 N.J. 127 (1987), the court invoked the provisions of the Code of Criminal Justice concerning the doctrine of lesser-included offenses. The court upheld a conviction for burglary despite an acquittal for the lesser-included offense of theft because the acquittal did not preclude finding all the elements necessary for a burglary conviction.See footnote 1

    Defendant relies on State v. Peterson, 181 N.J. Super. 261 (App. Div. 1981), certif. denied, 89 N.J. 413 (1982), which qualified the general rule of acceptance of inconsistent verdicts by stating that unless inconsistent verdicts preclude the establishment of an element of an offense, an acquittal does not affect the validity of a conviction supported by sufficient evidence. However, Peterson relied in part on the reasoning of United States v. Hannah, 584 F.2d 27 (3d Cir. 1978), which was later disapproved in Powell. In State v. Burnett, 245 N.J. Super. 99 (App. Div. 1990), the court rejected the Peterson rule that an acquittal on one offense that precludes the finding of one or more elements of a second offense invalidates a conviction on the second offense because it believed that this Court would apply the doctrine of unreviewability even in such circumstances.

It is equally possible that the jury, convinced of guilt, properly reached its [guilty verdict] . . . and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on [a different] offense. But in such situations the Government has no recourse if it wishes to correct the jury's error; the Government is precluded from appealing or otherwise upsetting such an acquittal by the Constitution's Double Jeopardy Clause.
             Inconsistent verdicts therefore present a situation where "error," in the sense that the jury has not followed the court's instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, and the fact that the Government is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course.

        [Powell, supra, 469 U.S. at 65, 105 S. Ct. at 476-477, 83 L. Ed. 2d at 468-469 (emphasis added) (citations omitted).]

We quite agree with that statement of the law. The problem with the analysis in this case is that there is virtually no "uncertainty." The reason for the verdict appears from the record. Despite the prosecutor's repeated attempts to persuade the trial court to clarify its charge to the jury on accomplice liability for aggravated arson, the court did not correct its original charge. Early in its instructions, the court instructed the jury that Count Two of the indictment charged defendant with committing aggravated arson as a principal:
        The second count indicates [the defendant] . . . did commit the act of starting a fire at 19 Vanderpool Street, Newark, New Jersey, thereby purposely or knowingly placing another person in danger of death or bodily injury and or with the purpose of destroying

said structure of another. Commonly referred to . . . as aggravated arson.                

            In order for you to find the defendant to be guilty of aggravated arson, the state must prove the following elements beyond a reasonable doubt. One; that the defendant started a fire . . . .

        If the state has proven each element beyond a reasonable doubt, then you should find the defendant guilty of aggravated arson.

                    [Emphasis added.]

Not until much later in the instructions did the trial court charge the elements of accomplice liability:
            The state's theory here, ladies and gentlemen, is not that [defendant] was the person who actually set the fire, but he aided and abetted Mr. Jenkins [the accused principal]. A person is an accomplice of another person in the commission of a crime when with the purpose of promoting or facilitating the commission of that crime that person aides [sic], agrees or attempts to aid such other person in planning or committing it.

After further instructions, the court excused the jury to deliberate. Shortly after beginning deliberations, the jury sent in a note requesting further instruction. The note stated simply: "[Y]our Honor please inform us of the law for count two," the aggravated arson count. When the court showed that request to counsel, the prosecutor immediately commented that "it may have been a little confusing" to instruct the jurors first on the responsibility for the substantive crime of aggravated arson as a principal, and then later to instruct them on accomplice

liability. The State therefore asked the trial court to "focus on" defendant being charged as an aider and abetter when instructing the jurors anew on aggravated arson. Defense counsel argued, however, that the jury "didn't ask for [the] law on accomplice [liability]," and had only requested the law on aggravated arson. Defense counsel requested that the trial court simply reread the charge on aggravated arson. The trial court agreed and responded that it would give "[j]ust the straight charge." The jury was brought back and the trial court gave the following instruction:
        [Y]our recent note reads as follows; your Honor please inform us of the law for count two. Count two was aggravated arson[.] I assume that's a repeat of what I told you initially.

            The indictment charges . . . this defendant with aggravated arson in violation of a statute which reads in pertinent part as follows: A person is guilty of aggravated arson if he starts a fire, whether on his property or another[']s. Thereby purposely or knowingly placing any other person in danger of death or bodily injury, or with the purpose of destroying a building or structure of another . . . .

That recharge repeated the full charge on aggravated arson as a principal and did not include any discussion of accomplice liability. After the jury was excused for further deliberations, the prosecutor again argued:
        I don't think it is enough to charge after the fact he's charged as an[] aider and abettor. I think they have to focus on what the culpability is [when] we talk about the defendant[.] [C]learly now it's not the

state's theory never been that this defendant started the fire.

The trial court responded, "I forgot to tell them to keep that portion of the charge in connection with the other. Let's bring them out." The jury was brought in and given the following brief instruction:
        I neglected to tell you something. Although you asked and I did instruct you as to count two aggravated arson, you have to keep that charge together with my entire charge, when you go back in to deliberate. Want to be sure you understood that. Thank you. You may return.

    On further reflection, the court thought that the jury may have been confused because it had incorrectly charged the jury initially that defendant could be found guilty of arson for acting "recklessly." N.J.S.A. 2C:17-1b does allow for an arson conviction based on reckless conduct; however, this case did not involve recklessness. The prosecutor disagreed, arguing that more likely the jury was confused about whether it was to determine defendant's culpability for aggravated arson as a principal or as an accomplice. The prosecutor believed that the court should wait to see if the jury requested clarification. The court, however, decided to recall the jury a third time to give it further instructions. The new instruction again did not mention accomplice liability, but instead focused on the fact that the charge of aggravated arson involved either purposeful or knowing conduct, rather than recklessness. The court again excused the jury. Soon thereafter, the jury returned with its verdict: guilty of second-degree conspiracy to commit aggravated

arson; not guilty of second-degree aggravated arson; not guilty of three counts of murder; guilty of three counts of felony murder; and not guilty of third-degree terroristic threats.
    That charging sequence undoubtedly led the jury to acquit defendant of the underlying predicate to a felony murder conviction. This, then, is not a case like Powell in which inconsistency suggests that "the jury has not followed the court's instructions." 469 U.S. at 65, 105 S. Ct. at 477, 83 L. Ed. 2d at 469. This jury followed the court's instructions on arson because it thought that only the one who set the fire could be guilty of arson; it followed the court's instructions on felony-murder but those instructions misled the jurors. The jury, in short, was led down the wrong path. The jurors had erroneously believed that defendant could not be convicted of aggravated arson unless he set the fire himself. That is evidenced by their acquittal on arson. They acquitted defendant of the aggravated arson charge after finding that he was not a principal. However, the jurors believed that defendant was guilty of conspiracy to commit aggravated arson, as clearly indicated by their finding of guilt on that count. Thus, they must have concluded the conspiracy to commit aggravated arson would suffice as the predicate felony to the felony-murder charge. This was the trial court's understanding of the verdict, because it believed that the conspiracy count could form the predicate for felony murder. It stated "the fact that there was a conviction of the conspiracy to commit arson . . . in itself

would be sufficient to be the predicate for [the felony murder counts]."
    We know that the substantive crime of conspiracy is not a predicate offense for felony murder. See N.J.S.A. 2C:11-3(3) (listing predicate felonies). However, the charge did not explain that. Although the court explained to the jury that defendant could be guilty of conspiracy without being guilty of aggravated arson, it failed to explain that defendant could not be guilty of felony murder without also being guilty as an accomplice. The felony murder charge required that the jurors first find that defendant was "engaged in the commission of aggravated arson" (emphasis added) for the jurors to convict of felony murder. Had the jury understood that conspiracy to commit arson could not be a predicate felony for the felony murder charge, it could not have convicted defendant of felony murder since it did not convict him as a principal.
    The counter-argument, that had the jury properly understood the accomplice charge then it would have convicted defendant, would require us to rewrite the verdict. True, the jurors might have convicted defendant as an accomplice to arson and perhaps they would have convicted defendant if otherwise charged, but we cannot substitute our interpretation of the verdict for the jury's own. The jury simply did not convict defendant of arson. It is "the nondelegable and nonremovable responsibility of the jury to decide" the question of guilt or innocence in accordance with the instructions given to it. Ingenito, supra, 87 N.J. at

211. The question is not whether a theory of guilt may be spelt out of a record, but whether guilt on that theory has been found by a jury. State v. Schmidt, 110 N.J. 258 (1988).
    The proper focus is on whether the jurors validly found defendant guilty of felony murder. The sequence of events here leads to one conclusion: the jury undoubtedly relied upon an improper predicate felony, and thus did not properly convict defendant; it did not exercise lenity. A verdict based on such an improper predicate cannot stand.
    This, then, is an idiosyncratic case. It is not a case in which the jury having "properly reached its conclusion on the compound offense . . . then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense." Powell, supra, 469 U.S. at 65, 105 S. Ct. at 476, 83 L. Ed. 2d at 468. It is a case in which the inconsistency in the verdicts is undoubtedly due to the jury's erroneous belief that it could convict defendants of felony murder based on the conspiracy count. Although the jury might well have convicted the defendant of aggravated arson as an accomplice, it did not do so for reasons acknowledged by the prosecution to be related to the sequence of the charge and recharge on aggravated arson. This problem will most likely never arise again.
    This is the first case in our experience in which we would be asked to uphold a felony murder conviction when a jury has acquitted a defendant of the underlying predicate felony. In felony-murder cases, courts should instruct juries that they may

not convict a defendant of felony murder unless they convict the defendant of the underlying offense that is a predicate to the felony-murder conviction. That offense need not be a completed felony. The felony-murder statute allows a felony-murder conviction when the actor "is engaged in the commission of, or an attempt to commit" one of the underlying felonies. N.J.S.A. 2C:11-3a(3) (emphasis added). In some cases, therefore, the predicate might consist of an attempt, for example, an attempt to commit the felony of rape. In cases of completed offenses, such as the one in this case, a court should instruct a jury that it should not convict a defendant of felony murder unless it convicts the defendant of the underlying felony.See footnote 2 We request that our Committee on Model Criminal Jury Charges consider any needed revisions of the Model Charge.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

     v.

ROOSEVELT GREY,

Defendant-Appellant.

COLEMAN, J., dissenting in part and concurring in part.
    The Court purports to adopt Dunn-Powell, but to avoid its application to the present case, the Court holds that because the jury convicted defendant of felony murder without convicting him of the predicate felony of aggravated arson that was charged in the indictment, "the jury undoubtedly relied upon an improper predicate felony." Grey, supra, ___ N.J. at ___ (slip op. at 16). To support that conclusion, the Court speculates that because the jury found defendant guilty of conspiracy to commit aggravated arson, "they must have concluded the conspiracy to commit aggravated arson would suffice as the predicate felony to the felony-murder charge." Id. at 14. The Court further speculates that because of an unspecified "sequence of events . . . the jury . . . did not properly convict defendant; it did not exercise lenity." Id. at 16.
    The few jurisdictions that have not followed Dunn-Powell have carved out exceptions for compound-felony cases. No jurisdiction has failed to apply Dunn-Powell based solely on

speculations about why the jury reached inconsistent verdicts. Indeed, this Court has consistently adjured lower courts not to speculate about why a jury reached a certain result. Today, the Court has chosen to ignore its well-established law to reach a result that not even counsel for the defendant has urged.
    I dissent from the Court's holding, not only because it is not grounded in the facts or the law, but because "[t]he route to [the Court's holding] converts . . . the Court of last resort
. . . to some sort of super rescue-mission." Whitfield v. Blackwood, 101 N.J. 500, 501 (1986) (Clifford, J., concurring). Based on the Dunn-Powell sufficiency of the evidence standard, I would affirm the judgment of the Appellate Division.

    The Court's conclusion that the felony-murder convictions were based on the jury using conspiracy to commit arson as the predicate felony was soundly rejected by the Appellate Division. Indeed, the record discloses that the jury was never instructed that it could find defendant guilty of felony murder based on his liability as a co-conspirator to commit aggravated arson. Absent such instruction, I find no basis to conclude that the jury used conspiratorial liability under N.J.S.A. 2C:2-6b(4) to find defendant guilty of the felony murders.

    In this appeal, defendant contends that the jury's acquittal on the charge of aggravated arson constitutes the equivalent of a finding by the jury that the State failed to prove an essential element of felony murder. According to defendant, he was merely a bystander who "undertook no action" in response to Jenkins's request that he act as the lookout. Thus, defendant implies the jury's acquittal must have been based on its conclusion that he was not an accomplice in the aggravated arson, and therefore, the felony-murder convictions must be vacated.
    The State responds that defendant's acquittal of aggravated arson does not invalidate the felony-murder convictions. The State asserts that New Jersey has embraced a test, followed in the majority of reported decisions in this State, under which inconsistent verdicts may stand when it can be said that they may be the result of a jury's exercise of its power, but not right, of lenity or nullification. The State also asserts that an independent review of the sufficiency of the evidence, undertaken by trial and appellate courts, protects a criminal defendant from jury error. The State argues, therefore, that the inquiry here should be limited to whether defendant's convictions for felony murder were supported by sufficient evidence to permit a rational fact finder to find beyond a reasonable doubt that defendant, as an accomplice, "engaged in the commission of" aggravated arson, and that the deaths resulted therefrom. The State emphasizes that this inquiry is independent of the jury's determination on the charge of aggravated arson.

    To establish that defendant was guilty of the three felony murders, the State had to prove that defendant was vicariously liable for the deaths of three people caused by Jenkins setting fire to 19 Vanderpool Street. Felony murder is an absolute liability offense. State v. Martin, 119 N.J. 2, 22 (1989). Nonetheless, the State was required to prove the elements of aggravated arson and establish that the deaths resulted as "a probable consequence of" the actor's commission of the aggravated arson. Id. at 25, 27 (relying on N.J.S.A. 2C:2-3e).
    Aggravated arson, the predicate felony involved, is defined as starting a fire on property owned by the actor or another "[t]hereby purposely or knowingly placing another person in danger of death or bodily injury; or . . . [w]ith the purpose of destroying a building or structure of another." N.J.S.A. 2C:17-1a(1), (2).
    Although the trial court referred to a principal's criminal liability when defining the elements of an aggravated arson, the jury was instructed that the State sought to impose vicarious liability on defendant for the aggravated arson and homicides only as an accomplice. Pertinent to this case, accomplice liability is defined as follows:
        b. A person is legally accountable for the conduct of another person when:
        

        (3) He [or she] is an accomplice of such         other person in the commission of an

        offense . . . .
        

        c. A person is an accomplice of another person in the commission of an offense if:
        (1) With the purpose of promoting or facilitating the commission of the offense;
        he [or she]
        

        (b) Aids or agrees or attempts to aid such
        other person in planning or committing it . . . .

        [N.J.S.A. 2C:2-6.]
The jury was properly instructed pursuant to that statute, and it is presumed that the jury followed the court's instructions. State v. Perry, 124 N.J. 128, 166 (1991); State v. Manley, 54 N.J. 259, 270 (1969).
    Viewing the State's evidence in its entirety, unlike the majority members of this Court, I find no basis to conclude that defendant's convictions for felony murder should be vacated. A reasonable jury could have found that defendant participated in the commission of aggravated arson as an accomplice. Defendant admitted to purposely aiding Jenkins set fire to the house by acting as a "look out" while Jenkins entered the house with a can that defendant knew contained gasoline. Explaining why he agreed to be a look out, defendant described himself as a "follower" involved "in the drug game." Defendant aided Jenkins knowing that Jenkins intended to start the fire because Jenkins told defendant that he was going to burn Bellinger out of the house. Furthermore, defendant delivered that threat to members of Bellinger's family. Thus, there was overwhelming credible evidence to support a finding that defendant was guilty as an

accomplice of aggravated arson and felony murders beyond a reasonable doubt.
    Despite the overwhelming evidence that defendant aided Jenkins in the commission of aggravated arson, the jury found defendant not guilty of that predicate offense. The conclusion is inescapable that the verdicts of not guilty of aggravated arson and guilty of felony murder in this case are inconsistent. Unlike the majority, I do not believe that because the inconsistent verdicts in this case may be idiosyncratic under the decisional law of this State, a guilty person should go free on the charges of felony murder.

    My approach to deciding whether the inconsistent verdicts in this case should be permitted requires a determination of whether the convictions for felony murder are irrationally inconsistent with the jury's acquittal on the predicate felony. An irrationally inconsistent verdict is one that is not reasonably supported by the evidence presented during the trial. Although various panels in the Appellate Division have been somewhat divided over what standard should inform the decision, the division is not nearly as sharp as defendant suggests. My conclusion that the federal rule should be adopted "gains perspective from a detailed examination of the cases that have

considered various applications of the" rule. Hovbilt, Inc. v. Township of Howell, 138 N.J. 598, 606 (1994).

    The federal rule was established over one-half century ago. In Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), the United States Supreme Court held that a criminal defendant convicted by a jury on one count of an indictment may not attack that conviction simply because it is inconsistent with the jury's verdict of acquittal on another count. Id. at 393-94, 52 S. Ct. at 190-91, 76 L. Ed. at 358-59.
    The defendant in Dunn was indicted on three counts of violations of federal liquor laws. Id. at 391, 52 S. Ct. at 189, 76 L. Ed. at 358. The first count charged the defendant with maintaining a common nuisance by keeping intoxicating liquor for sale at a certain place. Ibid. The second and third counts alleged unlawful possession of the liquor and unlawful sale of the liquor respectively. Ibid. The same evidence was relied on to establish all three counts. Id. at 392, 52 S. Ct. at 189, 76 L. Ed. at 358. The jury convicted the defendant of the first count and acquitted him of the second and third counts. Ibid. The Supreme Court rejected the defendant's claim that he was entitled to have his conviction vacated because of inconsistent verdicts. Id. at 393-94, 52 S. Ct. at 190-91, 76 L. Ed. at 358-59. Justice Holmes was brief and to the point:

         Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. . . .

         "The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity."

                                  That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.

        [Ibid. (citations omitted).]

    Fifty-two years after Dunn was decided, the issue of inconsistent verdicts was revisited in United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed.2d 461 (1984). In Powell, the Ninth Circuit reversed the defendant's conviction on the compound offense of using a telephone to commit and facilitate certain predicate felonies because the jury had acquitted the defendant of the predicate felonies. United States v. Powell, 719 F.2d 1480, 1481 (9th Cir. 1983), rev'd, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed.2d 461 (1984). The Ninth Circuit acknowledged that it "follows the Dunn rule," id. at 1480, but then did precisely what the majority has done in the present case: it viewed the case before it as an exception to Dunn. Id. at 1481. The court concluded, as has the majority in the present case,

that the conviction on the compound offense could not stand in light of the acquittal on the predicate felony. Ibid.
    The Ninth Circuit relied in part on the Third Circuit's decision in United States v. Hannah, 584 F.2d 27 (3d Cir. 1978). Like the defendant in Powell, Hannah was convicted of using a telephone to facilitate a felony and was acquitted of the underlying felony. Id. at 28. The Third Circuit affirmed the trial court's directed verdict of acquittal on the telephone facilitation charge. Ibid. Focusing on the "interdependent" nature of the counts charged in the indictment, just as the majority has done today, the court concluded that the reasoning of Dunn was inapplicable:
    
         As has been previously observed, because of the interdependent Count III-Count I theory presented by the government at trial, we cannot conclude that "[e]ach count in [this] indictment is regarded as if it was a separate indictment." . . . In Dunn . . . the several counts each constituted a discrete offense. This case, however, was presented to the jury on a very limited basis: that the "acts constituting a felony" under § 843(b) in Count III were the very same acts that constituted the conspiracy alleged in Count I. Because the jury found Hannah not guilty of conspiracy, the felony relied upon by the government to satisfy the felony requirement of § 843(b), the government's case in Count III was insufficient as a matter of law. Accordingly, we will not apply the permissible inconsistent verdict rule to reinstate Hannah's conviction.

        [Id. at 30 (citations omitted).]

    In a unanimous decision authored by Justice Rehnquist and joined by Chief Justice Burger and Associate Justices Brennan,

White, Marshall, Blackmun, Powell, Stevens, and O'Connor, the United States Supreme Court in Powell reversed the Ninth Circuit, reaffirmed Dunn, and expressly rejected Hannah and other cases in which courts had sought to carve out exceptions to Dunn based on inconsistent verdicts on compound offenses. Powell, supra, 469 U.S. at 64-67, 105 S. Ct. at 476-78, 83 L. Ed. 2d at 468-70. The Court stated:
         We believe that the Dunn rule rests on a sound rationale . . . . As the Dunn Court noted, where truly inconsistent verdicts have been reached, "[t]he most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt." . . . [I]nconsistent verdicts--even verdicts that acquit on a predicate offense while convicting on the compound offense--should not necessarily be interpreted as a windfall to the Government at the defendant's expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations . . . the Government is precluded from appealing or otherwise upsetting such an acquittal by the Constitution's Double Jeopardy Clause.

         Inconsistent verdicts therefore present a situation where "error," in the sense that the jury has not followed the court's instructions, most certainly has occurred, but it is unclear whose ox has been gored. . . . [T]he possibility that the inconsistent verdicts may favor the criminal defendant as well as the Government militates against review of such convictions at the defendant's behest. This possibility is a premise of Dunn's alternative rationale--that such inconsistencies often are a product of jury
        lenity. . . .

         The burden of the exercise of lenity falls only on the Government, and it has been suggested that such an alternative should be available for the difficult cases where the jury wishes to avoid an all-or-nothing verdict. Such an act is, as the Dunn Court recognized, an "assumption of a power which [the jury has] no right to exercise," but the illegality alone does not mean that such a collective judgment should be subject to review. The fact that the inconsistency may be the result of lenity, coupled with the Government's inability to invoke review, suggests that inconsistent verdicts should not be reviewable.

         We also reject, as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake. . . . Courts have always resisted inquiring into a jury's thought processes. [T]hrough this deference the jury brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality.

        [Ibid. (citations omitted) (emphasis added) (footnote omitted).]

    To summarize, the Powell Court concluded that inconsistent verdicts in criminal trials should be insulated from review for two related reasons. First, the inconsistency may be the result of jury mistake, compromise, lenity, or some unspecified error that worked against a defendant. Second, due to double jeopardy principles, the government is unable to invoke review of an acquittal despite error, compromise, or lenity.

    That a jury possesses the power to acquit for impermissible reasons is clear. See, e.g., United States v. Dotterweich, 320 U.S. 277, 279, 64 S. Ct. 134, 135, 88 L. Ed. 48, 50-51 (1943) ("Whether the jury's verdict was the result of carelessness or compromise . . . is immaterial. Juries may indulge in precisely such motives or vagaries."); Dunn, supra, 284 U.S. at 393, 52 S. Ct. at 190-91, 76 L. Ed. at 359.
    That the jury's power to acquit is generally unreviewable is also clear. Four years prior to Powell, the United States Supreme Court discussed the government's inability to invoke review of an acquittal in Standefer v. United States, 447 U.S. 10, 100 S. Ct. 1999, 64 L. Ed.2d 689 (1980). The issue in Standefer was whether the doctrine of nonmutual collateral estoppel mandated reversal of a conviction for aiding and abetting in the commission of a federal offense where the named principal had been previously acquitted of the offense.
    Standefer was convicted of paying for certain vacation trips taken by an Internal Revenue Service (IRS) official who had been acquitted in an earlier trial of accepting unlawful compensation in connection with the trips. Id. at 12, 100 S. Ct. at 2002, 64 L. Ed. 2d at 693. Standefer claimed that the government should have been barred from relitigating whether the IRS official had accepted the gifts. Id. at 13, 100 S. Ct. at 2002, 64 L. Ed. 2d at 694. This issue was an element of the charges against the defendant. Ibid. The Supreme Court disagreed. Chief Justice Burger, writing for a unanimous court, explained:

        [I]n a criminal case, the Government is often without the kind of "full and fair opportunity to litigate" that is a prerequisite of estoppel. . . . [The prosecution] is prohibited from being granted a directed verdict or from obtaining a judgment notwithstanding the verdict no matter how clear the evidence in support of guilt; it cannot secure a new trial on the ground that an acquittal was plainly contrary to the weight of the evidence; and it cannot secure appellate review where a defendant has been acquitted.

         The absence of these remedial procedures in criminal cases permits juries to acquit out of compassion or compromise or because of "`their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.'" [Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 190, 76 L. Ed.2d 356, 359 (1932) (quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925)).] It is of course true that verdicts induced by passion and prejudice are not unknown in civil suits. But in civil cases, post-trial motions and appellate review provide an aggrieved litigant a remedy; in a criminal case the Government has no similar avenue to correct errors. Under contemporary principles of collateral estoppel, this factor strongly militates against giving an acquittal preclusive effect.

        [Standefer, supra, 447 U.S. at 22-23, 100 S. Ct. at 2007, 64 L. Ed. 2d at 699-700 (citations omitted).]

    Powell and Standefer presented similar arguments and attempted to persuade the Court that, in light of their acquittals on charges based on essentially the same facts, principles akin to collateral estoppel precluded their convictions. The Powell Court expressly rejected that argument, as well as the alternative argument that the acquittal on the predicate offense necessitated a finding of insufficient evidence

on the compound offense. Powell, supra, 469 U.S. at 67-68, 105 S. Ct. at 478, 83 L. Ed. 2d at 470-71. The Court provided:
        [R]espondent's argument that an acquittal on a predicate offense necessitates a finding of insufficient evidence on a compound felony count simply misunderstands the nature of the inconsistent verdict problem. Whether presented as an insufficient evidence argument, or as an argument that the acquittal on the predicate offense should collaterally estop the Government on the compound offense, the argument necessarily assumes that the acquittal on the predicate offense was proper--the one the jury "really meant." This, of course, is not necessarily correct; all we know is that the verdicts are inconsistent. The Government could just as easily--and erroneously--argue that since the jury convicted on the compound offense the evidence on the predicate offense must have been sufficient. The problem is that the same jury reached inconsistent results; once that is established principles of collateral estoppel--which are predicated on the assumption that the jury acted rationally and found certain facts in reaching its verdict--are no longer useful.

        [Ibid.]
    The Dunn-Powell rule contains its own protective mechanism to guard against improper verdicts. A criminal defendant "is afforded protection against jury [or judge] irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts." Powell, supra, 469 U.S. at 67, 105 S. Ct. at 478, 83 L. Ed. 2d at 470. That protective mechanism was summarized as follows:
        Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt. This review should be independent of the jury's determination that

evidence on another count was insufficient. The Government must convince the jury with its proof, and must also satisfy the courts that given this proof the jury could rationally have reached a verdict of guilt beyond a reasonable doubt. We do not believe that further safeguards against jury irrationality are necessary.

        [Ibid. (emphasis added) (citations omitted).]

    Analytically, the Dunn-Powell sufficiency-of-the-evidence standard is similar to that articulated in State v. Reyes, 50 N.J. 454, 458-59 (1967), for a motion for a directed verdict of acquittal at the close of all the evidence. See R. 3:18-1. The test to apply when challenging the sufficiency of the evidence is
        whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

        [State v. Reyes, 50 N.J. 454, 459 (1967); accord State v. Brown, 80 N.J. 587, 591 (1979) (citation omitted); see also State v. C.H., 264 N.J. Super. 112, 128 (App. Div.) (holding that "when the motion is made at the conclusion of the State's case, the court is not to review the evidence presented by defendant"), certif. denied, 134 N.J. 479 (1993); State v. Johnson, 274 N.J. Super. 137, 156-57 (App. Div.) (applying Reyes standard to determine how motion for acquittal should be decided), certif.