Are there some crimes you can't legally be an accomplice to?
by: Ryan • November 11, 2014 • no comments
In a presentation I've made to OCDLA, I've argued that the Supreme Court's decision in St v. Lopez-Minjarez should have a huge impact on accomplice cases, even more than simply eliminating the concept of "natural and probable consequences." Specifically, by requiring an intent to commit the crime the accomplice is accused of aiding and abetting, the Supreme Court requires the defendant intend each and every material element.
So, for example, if a defendant aids and abets a DCS, then he must intend the aid the delivery of a controlled substance. And to be guilty of DCS w/in 1000 feet of a school, he must similarly intend to deliver drugs within 1000 feet of a school. Intending a mere delivery is not enough to be guilty of DCS w/in 1000 feet. Why? Take a look at the statute.
- 161.155 Criminal liability for conduct of another. A person is criminally liable for the conduct of another person constituting a crime if:
(2) With the intent to promote or facilitate the commission of the crime the person:
(b) Aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime;
Note that the statute does not say that the defendant must intend to aid and abet "a" crime. He must intend to aid and abet "the crime" in order to be liable for it. Therefore, it's not enough to intend to abet a delivery if the state wants a conviction for DCS w/in 1000 feet of a school. Allowing anything less than the intent to commit "the crime" of DCS w/in 1000 feet would essentially revive the natural and probable consequences doctrine, or worse, and we know that doctrine is dead, dead, dead.
As I noted in my presentation in December, 2012, at the Benson, full application of an intentional mental state can help us quite a bit. Someone who commits assault in the second degree (a knowing mental state) based on serious physical injury does not need to know he is causing a serious physical injury. But under a case called St v Peacock, if the mental state is intentionally, then the defendant must intend to cause serious physical injury. This is because the definition of intent applies it to results, but the knowing mental state does not apply to results.
The definition of “intentionally” – and the other culpable mental states – can be found at ORS 161.085.
- 161.085 Definitions with respect to culpability. As used in chapter 743, Oregon Laws 1971, and ORS 166.635, unless the context requires otherwise:
(6) “Culpable mental state” means intentionally, knowingly, recklessly or with criminal negligence as these terms are defined in subsections (7), (8), (9) and (10) of this section.
(7) “Intentionally” or “with intent,” when used with respect to a result or to conduct described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described.
(8) “Knowingly” or “with knowledge,” when used with respect to conduct or to a circumstance described by a statute defining an offense, means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists.
So far, so good. But if you've read some of my posts over the last few weeks on attempted aggravated murder, you know that I have been harping on the fact that "intentionally" cannot as a matter of law apply to circumstances. But "w/in 1000 feet of a school" is a circumstance. So if the mental state is intentionally, as it is with all accomplices, it can't apply to "w/in 1000 feet of a school" without violating the definition of intentionally above.
But if it doesn't apply to "w/in 1000 feet of a school," then the requirement that an accomplice must intend "the crime" he is accused of is violated.
What's the solution? Maybe a defendant simply can't be guilty as an accomplice of a crime with a circumstance as an element. If it's an element (a circumstance) a defendant is not statutorily allowed to intend, but it's also an element a defendant must intend per statute to be guilty, then maybe the only resolution to this Gordian knot is to say accomplices can't be guilty of certain crimes.
