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What if the Law Changed and No One Noticed, part 2

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by: Ryan • July 19, 2013 • no comments

In the first part of this essay, I put forth an argument why an accomplice must intend all elements of DCS w/in 1000 feet of a school, even if the principal did not have to know, much less intend, that a school was nearby.

Here's another way of approaching the issue, in order to get to the same result. Rather than DCS, however, I want to use an example Assault II, when principal and the accomplice are accused of causing a serious physical injury.

When it comes to accomplice liability, the required culpable mental state is always “intentionally.”

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;

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.

Notice that the difference between “intent” and “knowing” is not just the difference between the intent to do something versus knowing it is going to happen. Intent could apply to either “a result or to conduct” and knowing could apply to either a circumstance or conduct. Whether “circumstance” or “conduct” applies is very much charge-specific. See State v. Davis, ___ Or App ___ (October 17, 2012).

Take a “knowing” crime. The defendant who commits second-degree Assault, based on knowingly causing serious physical injury, does not need to know he will cause serious physical injury. He only needs to know he is engaged in “assaultive behavior.” State v. Barnes, 329 Or 327, 986 P2d 1160 (1999).

After all, “serious physical injury” is not a circumstance. Therefore, it follows logically – if harshly -- that a crime with a “knowing” mental state wouldn’t apply to a result.

But the defendant who commits first-degree Assault, based on intentionally causing serious physical injury with a dangerous weapon, must intend to cause serious physical injury. State v. Peacock, 75 Or App 217, 706 P.2d 982 (1985). And while this might seem, on its face, inconsistent with Barnes, it comes down to the fact that first-degree Assault is an intent crime, and “intent” applies – in some situations – to the “result.” And serious physical injury is nothing if not a result.

It follows that if an accomplice is charged with second-degree Assault, and the mental state is “intent,” then the accomplice MUST intend serious physical injury, i.e., the result.