Insufficient circumstantial evidence of aiding murder.

 State v. Durenleau, 163 Vt. 8, 12-13, 652 A.2d 981, 982 (1994) 

ALLEN, Chief Justice.Defendant Rebecca Durenleau appeals her conviction following a jury trial for the first-degree murder of her husband, Michael Durenleau. Defendant contends that the State failed to present sufficient evidence to establish her guilt beyond a reasonable doubt. We agree and reverse.

On the evening of July 12, 1985, defendant and her husband left their Swanton home and headed for the tavern. They arrived at approximately 9:30 p.m. and defendant parked the car in an unlit area behind a building located to the rear of the tavern.  The Durenleaus entered the bar together, found a table, and ordered a beer. After driving nearly thirty miles from Swanton to Essex, they stayed only fifteen minutes 983*and left without finishing the beer. Defendant and her husband went back to the car; Without warning, Michael Durenleau was struck in the back of the head with a blunt instrument and stabbed twice in the heart. 

In reviewing a denial of a Rule 29 motion, this Court must determine whether the evidence presented by the State, taken in the light most favorable to the prosecution and excluding any modifying evidence, sufficiently and fairly supports a finding of guilt beyond a reasonable doubt.

To convict defendant, the prosecution had to prove that Olmstead unlawfully killed Michael Durenleau, wilfully and deliberately, with premeditation, and that defendant aided or incited him in that killing.

 The evidence established that defendant carried on an adulterous affair, wanted to leave her husband for Olmstead but was concerned about losing her house and children, lied when she denied knowing about an increase in her husband's life insurance, and said she would be better off if her husband were dead. Knowing of the mutual hostility between Olmstead and her husband, she threatened to start sleeping with her husband again unless Olmstead "proved himself." The fatal trip to Veronica's was planned in advance, and defendant drove to the tavern and parked in the back. After a fairly long drive to the tavern, defendant and her husband stayed only briefly. An individual fitting Olmstead's general description and a truck similar to his were seen in the area around the time of the assault. Defendant failed to direct the bar patrons to the murder scene immediately. Shortly after the killing, defendant and Olmstead 984*were in regular contact, and Olmstead told defendant that he had "proven himself."

After careful review of the record in the light most favorable to the State, we conclude that a jury could not properly find defendant guilty beyond a reasonable doubt If Olmstead had lain in wait and ambushed Durenleau, the only evidence of defendant's participation was the fact that the reconciliation celebration had been planned in advance, that defendant drove and parked behind the bar, that they stayed only briefly, and that she did not immediately direct people to the rear of the building. Without additional evidence, the jury was left to speculate that defendant and Olmstead had orchestrated the attack. t

Defendant may have been happier without her spouse, and may have unwisely continued to associate with Olmstead, a suspected murderer, but the evidence does not permit rational inferences sufficient to establish guilt beyond a reasonable doubt that defendant assisted in her husband's murder.

Therefore, we reverse the conviction and direct entry of a judgment of acquittal. We do not readily overturn a jury's determination, but this Court cannot shrink from its duty to protect an individual's due process right to conviction only by evidence of guilt beyond a reasonable doubt.

Double jeopardy bars her retrial, 

985

The judgment of conviction is reversed, and a judgment of acquittal is entered.

 Peter F. Langrock and Beth Robinson of Langrock Sperry & Wool, Middlebury, for defendant-appellant