dissenting.
I disagree with the majority’s decision which permits the State to retry Michael Butler on the various counts relating to the shooting of Sharrell Hudson after a jury had earlier convicted Butler of being an accessory after the fact to the *274murder of Sherman Chenault, acquitted him of second degree murder, and hung on the remaining counts. In light of the evidence, the jury instructions, and the closing arguments, Butler’s conviction as an accessory after the fact to murder represented a determination that Butler was not a principal in any of the crimes charged. Therefore, under the collateral estoppel principles set forth by this Court in Ferrell v. State, 318 Md. 235, 567 A.2d 937, cert. denied, 497 U.S. 1038, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990); Grant v. State, 318 Md. 672, 569 A.2d 1237 (1990); and Powers v. State, 285 Md. 269, 401 A.2d 1031, cert. denied, 444 U.S. 937, 100 S.Ct. 288, 62 L.Ed.2d 197 (1979), the State should be precluded from retrying Butler on the counts relating to Hudson.
As the majority points out, collateral estoppel is a component of the Fifth Amendment double jeopardy prohibition as well as a recognized principle under Maryland common law. Dowling v. United States, 493 U.S. 342, 347, 110 S.Ct. 668, 671-672, 107 L.Ed.2d 708, 717 (1990); Ashe v. Swenson, 397 U.S. 436, 445-446, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469, 476-477 (1970); Gibson v. State, 328 Md. 687, 693, 616 A.2d 877, 880 (1992); State v. Anderson, 320 Md. 17, 29, 575 A.2d 1227, 1232-1233 (1990); Ferrell v. State, supra, 318 Md. at 241, 567 A.2d at 940; Bowling v. State, 298 Md. 396, 401, 470 A.2d 797, 799-800 (1984); Carbaugh v. State, 294 Md. 323, 329, 449 A.2d 1153, 1156 (1982); Powers v. State, supra, 285 Md. at 283-284, 401 A.2d at 1039. The doctrine provides that “ ‘when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’” Dowling v. United States, supra, 493 U.S. at 347, 110 S.Ct. at 672, 107 L.Ed.2d at 717, quoting Ashe v. Swenson, supra, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475. See Gibson v. State, supra, 328 Md. at 693, 616 A.2d at 880; Apostoledes v. State, 323 Md. 456, 463-464, 593 A.2d 1117, 1121 (1991); Ferrell v. State, supra, 318 Md. at 241, 567 A.2d at 940. The burden is on the party asserting collateral estoppel to show that “the issue whose relitigation he seeks to foreclose was actually decided in the *275first proceeding.” Dowling v. United States, supra, 493 U.S. at 350, 110 S.Ct. at 673, 107 L.Ed.2d at 719.
The issue of ultimate fact which Butler contends was resolved at his trial is the role that he played in the shooting of Chenault and Hudson. Butler argues that his conviction as an accessory after the fact to the murder of Chenault represented a jury determination that he was not a principal in any of the crimes for which he was tried. Butler relies upon the mutual exclusivity of being an accessory after the fact to murder and a principal in the first or second degree to murder as the basis for his collateral estoppel challenge. In support of his argument, Butler cites Grant v. State, supra, 318 Md. 672, 569 A.2d 1237, for the principle that collateral estoppel can be predicated upon a guilty verdict as to one crime, which, because of the doctrine of mutual exclusivity, operates as a not guilty determination as to another crime.
In Grant, the defendant had been convicted in Baltimore City, upon an Alford1 plea, of theft based on his possession of stolen goods. The State’s theory was that he was the receiver of the stolen goods. Shortly thereafter, the defendant was convicted in Baltimore County of storehouse breaking with intent to steal the very same goods which were the basis of his earlier conviction. The storehouse breaking had occurred in Baltimore County. At the trial on the storehouse breaking charge, the only evidence offered to prove Grant’s criminal agency was the fact that he had been found in exclusive possession of the stolen goods. From this fact the jury could have inferred that Grant was the thief. Upon further proof that the goods were stolen as the result of the breaking, the jury could have inferred that Grant was involved in the storehouse breaking. This Court reversed Grant’s storehouse breaking conviction on collateral estoppel grounds. We pointed out that, both at common law and under the theft offense statute, a person may not be both the receiver of the stolen *276goods and the person who stole them.2 We then held that, under collateral estoppel principles, the Baltimore City “adjudication” that Grant was the receiver of the goods “precluded a subsequent finding that Grant was the person who stole the goods.” Grant, 318 Md. at 679-680, 569 A.2d at 1240-1241. Thus, the inference that Grant had been the thief was unavailable to the State as evidence that Grant was guilty of breaking, and the State had no other proof that he was involved in the breaking.
The majority agrees that, under the teaching of Grant, and Maryland law prior to State v. Hawkins, 326 Md. 270, 604 A.2d 489 (1992),3 the adjudication that Butler was an accessory after the fact to the murder of Chenault precluded a subsequent finding that he was guilty of murdering Chenault. The majority, however, does not interpret Grant to preclude retrial on the counts relating to Hudson. Rather the majority concludes that “Grant only precludes the State from drawing two totally inconsistent factual inferences from the same item of evidence, i. e., being found in possession of stolen goods.” This interpretation of Grant is unduly restrictive. What Grant precluded was a conviction for storehouse breaking based on a finding that would be inconsistent with the earlier Baltimore *277City adjudication. Since the State could only gain a conviction by relying on the inference that, because Grant possessed the stolen goods, he was the thief, and since this inference was inconsistent with the determination that Grant was the receiver, the conviction was overturned. Had the State been able to produce other evidence of Grant’s participation in the storehouse breaking, there would have been no conflict between the two convictions.
Application of the holding in Grant to the facts of the case at bar would indicate that a retrial on the counts concerning Hudson is barred because the State’s evidence demonstrated that Butler performed the same role in the shootings of both Chenault and Hudson. The evidence disclosed that Butler was parked on a road outside the parking lot when the shootings occurred. Although Hudson never saw a gun, she believed that Tilghman alone had been the shooter. There was no evidence that two guns or two shooters were involved. Nor was there any physical evidence to connect Butler to the shootings. Moreover, the shootings occurred in rapid succession. Even had Butler decided to assist Tilghman after Chenault was shot, there was no time for him to enter the parking lot and aid in the shooting of Hudson.4 The record was completely devoid of any evidence that Butler assumed different roles in the shootings. Thus, when the jury convicted Butler as an accessory after the fact to murder, it necessarily decided that Butler was not a principal with respect to all of Tilghman’s crimes that night against Chenault and Hudson.
Even if the majority were correct in its interpretation of Grant, the principles set forth in Ashe v. Swenson, supra, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, would still preclude the State from retrying Butler. In Ashe, the defendant had been acquitted of the robbery of one of six poker players in a trial where the sole issue was identity of the robbers. Subse*278quently, the State retried and a jury convicted Ashe for the robbery of another of the poker players. The Supreme Court reversed the conviction on collateral estoppel grounds, pointing out that “[t]he situation is constitutionally no different here, even though the second trial related to another victim of the same robbery.” 397 U.S. at 446, 90 S.Ct. at 1196, 25 L.Ed.2d at 477. Ashe involved the same crime but a different victim. In the present case, the crimes for which Butler was charged, murder and assault with intent to kill, are technically different but only because Chenault died from his wounds and Hudson did not. The conduct of the defendant was, however, the same with respect to both victims, just as the alleged conduct of Ashe was the same with respect to all of his supposed victims. Thus, once the jury convicted Butler as an accessory after the fact to murder, as a matter of law, Butler could not have been guilty of being a principal to Chenault’s murder. Furthermore, since the conduct as to both victims was identical, under the principles in Ashe, Butler could not be a principal in the shooting of Hudson.
Other jury actions support this conclusion. Specifically, the acquittal on second degree murder indicates the jury’s belief that Butler neither shot Chenault himself nor aided and abetted Tilghman in the shooting of Chenault. Consistent with the second degree murder acquittal, the jury likely determined that Butler did not aid or abet Tilghman in premeditated murder. The inability of the jury to agree on first degree murder, therefore, probably reflected the jury’s difficulty with the State’s alternate felony murder theory.5 Apparently the jury had questions as to whether a robbery had ever occurred, and if it had, whether it had taken place at *279Waning Moon Way. In a series of questions to the trial judge, the jury tried to understand what crimes had occurred and whether those crimes could form the basis of a felony murder conviction. The jury first asked:
“If person A and person B agree to exchange property (e.g., a purchase of drugs for money) and person B pays person A the agreed sum of money and then person A murders person B prior to delivering the agreed property and keeps the money, has person A committed robbery?”
The trial court responded that “[pjerson A has not committed a robbery. Person A has committed a theft.” At the jury’s prompting, the trial court also explained that a co-felon to a theft or a drug transaction would not be guilty of felony murder should a murder occur during the course of these crimes. The jury pressed the trial court further for clarification on this point:
“To make sure we understand you, the exchange of money from Sherman [Chenault] to Kent Tilghman with no force at the Butler’s home, constitutes a theft and not a robbery, and therefore, there could not be a felony murder conviction for Michael Butler.”
The trial court responded affirmatively.
These and other questions asked by the jury did not indicate that the jury was confused about whether an accessory after the fact to murder could also be an aider and abettor; rather they indicated jury preoccupation with theft and robbery. The jury seemed to believe that Butler may have aided and abetted in a theft or robbery, but it also seemed to be of the view that the theft or robbery, if any occurred, transpired at the Butler home and not at Waning Moon Way.
The majority asserts that “[wjhere, as in the instant case, the jury is not clearly instructed to the contrary, a person could be factually guilty of being a principal in the second degree by aiding and abetting as well as guilty of being an *280accessory after the fact.”6 The majority cites State v. Hawkins, 326 Md. 270, 604 A.2d 489 (1992) for this proposition. In Hawkins, however, the instructions regarding the crime of accessory after the fact neither explicitly nor implicitly conveyed to the jury that being a principal and an accessory after the fact were mutually exclusive crimes.7 An examination of the record in this case discloses that the jury was clearly informed that Butler could not be both an accessory after the *281fact to murder and a principal in either the first or second degree to the murder. In the jury instructions in this case, the trial judge defined an accessory after the fact as
“a person [who] with knowledge that a crime has been committed assists the offender by transporting him from the scene of the crime. In order to be guilty of this crime: One, the defendant must have become associated with the felony after its commission; two, the defendant must have provided assistance with knowledge that the felony had been completed; three, the assistance must have been given to one known to be the felon; and four, the assistance must have been given in order to hinder the felon’s apprehension by transporting him from the scene.
“The term ‘knowledge’ means that at that time the relief or assistance was given, the defendant must have had actual knowledge that the person assisted was the one who committed the felony....
“In order for the defendant to be convicted as an accessory after the fact, the State must prove beyond a reasonable doubt each of the elements of the underlying crime including that the crime was committed by someone other than the defendant.” (Emphasis added).
Although the instructions did not expressly inform the jurors that being an accessory after the fact to murder and a principal to murder are mutually exclusive, the clear and unmistakable impression is that an accessory after the fact is one whose affiliation with the crime begins only after the crime has been completed. A person who assisted in the crime itself and who also drove the perpetrator from the scene of the crime would not, under the above-quoted instructions, be an accessory after the fact.
Both the prosecuting attorney and the defense attorney also spoke to the mutual exclusivity of the two crimes. In her closing argument, the prosecuting attorney stated that “[t]o make this plan work there had to be a getaway driver. There had to be a reliable getaway driver. There had to be a *282lookout.... The getaway driver is not an accessory after the fact.” Later she commented:
“The defendant is charged in this case with sort of an alternative crime, I must admit. It’s ... called accessory after the fact, and that is not a getaway driver as I said before. That is someone who after the felony crimes are committed, knowing the felony crimes are committed, helps the person who committed the crime get out of there to avoid detection.” (Emphasis added).
The defense attorney, in his closing argument, further reinforced the notion of the mutual exclusivity of being an accessory after the fact to murder and being a principal: -
“And as Ms. O’Donnell said, the government has-put before you a remaining count, accessory after the fact.... They put that count before you because they said, well, if you don’t believe that he’s the murderer, if you don’t believe that he assaulted her with intent to murder her, if you don’t believe that he used a handgun, if you don’t believe he was the accomplice, if you don’t believe any of that, at least he drove [him] away.... At least he drove Kent Tilghman from the scene, so he’s an accessory after the fact. So they throw it on at the end. So they said so we can try to get him for something.”
In finding the jury instructions inadequate, the majority asserts that the trial judge’s instruction to consider each count separately gave the jurors the impression that “they could find Butler guilty of aiding and abetting in the assaults and also guilty of being an accessory after the fact to murder.” These instructions, however, are routinely given whenever a defendant is charged with multiple counts. See David E. Aronson, Maryland Criminal Jury Instructions and Commentary 110 (2d ed. 1988); Maryland Criminal Pattern Jury Instructions 8:06, at 40^1 (1991). They do not apply to situations where the crimes are, in light of their elements, mutually exclusive. Under this reasoning, any time a jury receives a similar instruction, it could feel free to disregard elements of the *283crimes when there is a relationship between offenses charged in different counts.
By deeming inadequate the jury instructions given in this case, the majority seems to be requiring that all jury instructions in criminal cases be perfect and that they be given with 100% completeness and clarity. Such a requirement can only result in a proliferation of challenges to otherwise acceptable jury instructions. If Butler had objected to the accessory instructions and had appealed his accessory after the fact conviction, the majority opinion implies that the conviction would be reversed. I would not agree.
The majority further asserts that the jury’s being “deadlocked on all charges involving the attack on Hudson ... should be considered as at least some indication that it did not acquit Butler of being an aider and abettor in that attack.” In Powers v. State, supra, we explained the relationship between the jury’s inability to resolve one count and its verdict on another count, when the verdict and the count on which the jury had hung shared issues of ultimate fact (285 Md. at 285, 401 A.2d at 1040):
“In our view, there can be no inconsistency in a jury’s findings of fact when it acquits on one count and is unable to agree on another count having a common issue of ultimate fact, which if found in favor of an accused would establish his innocence on both counts. In Maryland, a mistrial is equivalent to no trial at all. Cook v. State, 281 Md. 665, 671, 381 A.2d 671, 674 (1978). It is not a final determination and decides no question of fact. Accordingly, a jury’s failure to agree, which results in a mistrial, does not establish any facts, and thus cannot establish facts inconsistent with those established by its verdicts of acquittal. United States v. Smith, 337 A.2d [499] at 503-04 [1975] (Kern, J., concurring).”
We reaffirmed this principle in Ferrell v. State, supra, where we made clear that the focus, for purposes of applying the doctrine of collateral estoppel, must be upon the count on which the jury had returned a verdict, “with that [verdict] *284being viewed as a rational resolution of the underlying facts.” 318 Md. at 254-255, 567 A.2d at 947. The majority attempts to distinguish Powers and Ferrell on the basis that those cases involved an acquittal on a count that shared a common issue with the counts unresolved by the jury, whereas, the instant case focuses on whether there were common issues among various counts which were resolved by the defendant’s conviction on a particular count. In Ferrell we pointed out that “it is logical to focus upon the counts where the jury reached verdicts rather than upon counts representing no decision and establishing nothing.” 318 Md. at 255, 567 A.2d at 947. Thus, although in Ferrell, the jury acquitted the defendant on one count, we made, clear that it was the counts which the jury resolved, whether by acquittal or conviction, that would be the touchstone of collateral estoppel analysis.
A “rational and reasonable” reading of the record in this case confirms that the jury’s verdict on the accessory after the fact charge represented a determination that Butler was not an aider and abettor in the killing of Chenault. In light of the record, this verdict also represented a determination that Butler was not a principal in the crimes against Hudson.
Judge BELL has authorized me to state that he concurs with the views expressed herein.
. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
. We stated in Grant, 318 Md. at 678-680, 569 A.2d at 1239-1240, that the common law rale that one may not be both the receiver of stolen goods and the thief applied under the consolidated theft offense statute, Maryland Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.), Article 27, §§ 340, et seq. See Rice v. State, 311 Md. 116, 135, 532 A.2d 1357, 1366 (1987) ("Rice could not have both stolen the ... property and possessed it as stolen property”).
. As the majority points out, this case was tried before our decision in State v. Hawkins, 326 Md. 270, 604 A.2d 489 (1992), in which we prospectively changed the longstanding common law requirement that an accessory after the fact to a crime may not be a principal in the crime. Were Hawkins applicable to the present case, there is no question that collateral estoppel principles would not preclude the reprosecution on the hung counts. Under Hawkins, Butler could be convicted as both an accessory after the fact and as a principal in the second degree to the same crime; he simply could not be sentenced for both offenses. Since, however, this case predates the application of the Hawkins case, the former requirement that an accessory after the fact cannot be a principal is applicable.
. It is more likely that the reverse would have been true. The facts indicate that Hudson played no part in the purported drug deal and was innocently accompanying Chenault on the night of the murder. Any murder/robbery plan would have likely been directed at Chenault who was the drug buyer and in possession of a great deal of money.
. The Court of Special Appeals acknowledged that the acquittal on second degree murder and the hung jury on first degree murder implied that the jury believed only that Butler may have intended to rob Chenault and not murder him. 91 Md.App. at 547, 605 A.2d at 201-202. According to the intermediate appellate court, "[t]he verdicts also imply that the jury may have had more trouble with the subtler notion that a participant in an underlying felony can nonetheless be responsible for a resultant murder even if he did not intend it.” 91 Md.App. at 547, 605 A.2d at 202.
. The majority speaks in terms of "factual guilt,” almost as if the mutually exclusive offenses of being an accessory after the fact and an aider and abettor are different from other mutually exclusive offenses. Such is not the case. An element of being an accessory after the fact to a crime is that one did not aid and abet the crime. Likewise, an element of "receiving” stolen goods is that one was not the thief. While it may be true that, in the abstract, one can both participate in a crime and drive the perpetrator from the scene of that crime, just as one could steal goods and then "receive" them from himself or just as one could attempt a crime as well as consummate it, nevertheless crimes are defined by their elements. The facts are relevant only inasmuch as they show the presence of the elements of a crime. Accordingly, if an element of a crime specifies that a person cannot have committed another act, then, regardless of whether it is "factually” possible to perpetrate both acts, that person can be found guilty of only one of the crimes. To suggest that Butler can be “factually guilty” of being both an accessory after the fact and an aider and abettor to the same crime is analogous to saying that a person who breaks into and enters a dwelling house in the daytime with a felonious intent is guilty of common law burglary; it requires the majority to ignore a crucial element of the crime. Only if the elements of being an accessory after the fact were changed in such a way that they were no longer mutually exclusive, such as occurred in State v. Hawkins, 326 Md. 270, 604 A.2d 489 (1992), could one be "factually guilty” of being an accessory after the fact and a principal. As we have indicated, however, this case is being decided under pre-Hawkins law. Thus, it is no more "hypertechnical" to preclude retrial in the case at bar than it was in Grant, supra, 318 Md. 672, 569 A.2d 1237.
. In Hawkins, the trial judge instructed the jury as follows:
“An accessory after the fact is a person who, with knowledge that a crime has been committed, assists the offender with the intent to hinder or prevent the offender’s arrest, prosecution, or trial. In order to convict the defendant, the State must prove: one, that the crime of murder has been committed; two, that the defendant knew that the crime of murder had been committed; three, that the defendant gave assistance to the person who committed the crime; and four, that the defendant did so with the intent to hinder or prevent that person’s arrest, prosecution or trial.”