What Crimes Can't You Legally Aid and Abet?
by: Ryan • August 31, 2015 • no comments
Ever since State v. Lopez-Minjarez, we've known that to be guilty as an accomplice, you must intend to aid that particular crime. It is not enough that you intend to aid in some crime, in order to be found guilty of some other crime that flows from it. For example, if you intend to aid and abet an Assault IV, you aren't guilty of Assault II (injury caused by use of a dangerous weapon) unless you intended the principal use a dangerous weapon. The key word is "intended." The only mental state -- or mens rea, if you prefer -- relevant to an accomplice is "intentionally." You can't be a reckless accomplice under Oregon law, or a negligent accomplice. (Yes, that includes felony murder, sort of, but that's such a different animal I'll save it for another day.)
This is a big deal. But I still feel like the defense bar still hasn't come to appreciate the significance of this holding.
As I've spoken and written about before, one benefit of Lopez-Minjarez -- well, really just the accomplice liability statute on which L-M is based -- is that there are some crimes an accomplice cannot legally be guilty of.
For example, take the crime of Robbery in the First Degree, based on the principal being armed with a deadly weapon. This isn't intuitive, but it's highly likely an accomplice can't be guilty of it.
The element that elevates Robbery III to a Rob I, in this example, is being armed with a deadly weapon, i.e., a firearm. All material elements fall into at least one of three categories: conduct, circumstance or result. Being armed with a deadly weapon is, I submit, a circumstance. Perhaps there is some daylight where the state could argue that being armed with a gun is actually conduct, but that seems a remote possibility.
We've already discussed that accomplice liability requires intent. But according to Oregon law, "intent" does not apply to . . . you guessed it, circumstance elements. There is simply no provision in Oregon law for applying an intentional mental state to such an element.
If you're the principal, that's not a problem. The prosecutor can just ask the jurors to apply a negligence or reckless or even knowing mental state to "armed with a dead weapon" and a conviction might follow. But if an accomplice can't legally intend Robbery I -- that is, can't legally intend that the principal is armed with a deadly weapon -- then the accomplice can't be guilty of Robbery I without violating the statute.
Is there a way around this, from the state's perspective? Perhaps. I have some thoughts that I'll keep to myself. But the first step is making the right arguments, both at MJOA and when requesting special jury instructions.
Well, I take that back. The first step is identifying when the state's theory is that your client is an accomplice, and then identifying all the "circumstance elements" in the crimes he's accused of aiding and abeting. If you've got one, let me know and I'll work with you on drafting the proper challenges.
