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Bar Journal - Fall 2005

Purposely Negligent: Revisiting New Hampshire’s Accomplice Liability Precedent After State v. Anthony

By:


New Hampshire Bar Journal Editor’s Award


Actus non facit reum nisi mens sit rea

—”An act does not make a person guilty, unless the mind be guilty.”

 

Introduction

     

Can an accomplice purposely aid in the commission of an act that results in unplanned harm?  To what extent may a person be an accomplice to a negligent crime?  If S intentionally gives P the keys to his car, knowing that P is intoxicated and P loses control of the car and kills V, to what extent is S liable as an accomplice for V’s death?   

     

Prior to the New Hampshire Supreme Court’s recent decision in State v. Anthony, a person could not be charged as an accomplice to an unintentional crime because an individual could not, as a matter of law, be an accomplice to a negligent crime.1  Twenty years later, however, and following an amendment to New Hampshire’s accomplice liability statute, the Court overruled its seminal accomplice liability case and held that the crime of accomplice to negligent crimes exists under New Hampshire law.2

     

This article discusses the New Hampshire Supreme Court’s recent per curiam decision in State v. Anthony and addresses accomplice liability for negligent crimes.  Part I introduces accomplice liability.  Part II discusses New Hampshire’s former accomplice liability statute, RSA 626:8, III and IV.  Part III reviews the precedent established by Etzweiler and also addresses the 2001 amendment to RSA 626:8, IV.  Part IV provides an overview of the Anthony decision and Part V analyzes the impact of the Anthony decision.  

 

I.       Accomplice Liability

     

Accomplice liability is a means of holding a person liable for crimes committed by another.3  In cases where a person is charged as an accomplice in the commission of a negligent or otherwise unintentional offense, the person must possess two states of minds:4  (1) the intent to assist the primary party to engage in the conduct that forms the basis of the offense; and (2) the mental state required for commission of the offense, as provided in the definition of the substantive crime.5 

     

Expressing the culpability requirement for accomplice liability as “intent,” however, can be problematic.6  The implication of “intent” is that the accomplice must want the principal to commit the crime (or know that it will take place).7  Yet it seems illogical to charge a person as an accomplice in the commission of a negligent crime.8  After all, how could a person intentionally aid in the commission of a crime that he was unaware he was committing?9  Some courts analyze accomplice liability in this way, and find as a matter of law, that a person cannot be convicted as an accomplice to a crime of negligence.10 

     

Conversely, other courts permit accomplice liability in such circumstances.11  As one scholar observed, conviction of an accomplice in the commission of a crime of negligence should be permitted as long as the accomplice has the two mental states previously discussed—intent to assist in conduct that forms the basis of the offense and the mental state required for commission of the subsequent offense.12 

     

Applying the majority view to the hypothetical proposed in the introduction, S should be treated as an accomplice in V’s negligent death.  First, S intended to encourage P to engage in the conduct that formed the basis of the offense, i.e., he intended to encourage P to drive while intoxicated which resulted in V’s death.  Second, S was criminally negligent in relation to V’s death by encouraging P to drive while intoxicated. 

     

On the other hand, if P, while driving at S’s encouragement, had negligently fallen asleep, thereby killing V, S might not be an accomplice in this negligent homicide.  The conduct that formed the basis of this homicide was the act of falling asleep while driving, and not the conduct that S intentionally encouraged, i.e., drunk driving.  

     

Some commentators, however, insistently reject the doctrine of accomplice liability for unintentional crimes.13  According to LaFavre and Scott, accomplice liability doctrine is most needed for crimes that prohibit specific culpable conduct, rather than for crimes that penalize an actor for causing an undesirable result.14  They favor assessing an actor’s culpability directly and limiting liability to cases where the actor is the legal cause of harm.15 

 

II.   The Statute

     

Legislation regarding the extent of accomplice liability generally falls into three categories:16 (1) statutes that predicate accomplice liability solely on the intent to aid in the commission of a specific offense;17 (2) statutes that are patterned after the Model Penal Code, requiring the accomplice to act with the intent to promote or facilitate the commission of the offense;18 and (3) statutes that require only that the accomplice intentionally aid the principal’s conduct and have the mens rea required by the underlying crime.19  New Hampshire falls under the second category, relying on the Model Penal Code for guidance.20 

     

Sections III and IV of RSA 626:8 lie at the center of the accomplice liability controversy.21  The subsections state:

 

   III. A person is an accomplice of another person in the commission of an offense if:

     (a) With the purpose of promoting or facilitating the commission of the offense, he solicits such other person in committing it, or aids or agrees or attempts to aid such other person in planning or committing it; or

     (b) His conduct is expressly declared by law to establish his complicity.

IV. Notwithstanding the requirement of a purpose as set forth in paragraph III(a), when causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.

The Court has interpreted section III as placing the burden of establishing that the accomplice acted with the purpose of promoting or facilitating the commission of the substantive offense on the state.22  Section III requires that the accomplice’s conduct aided the principal in committing the offense, and that the accomplice had the purpose to “make the crime succeed.”23 

     

Section IV, on the other hand, sets forth the elements of the substantive offense that the state has the burden of establishing against the accomplice.24  “‘When causing a particular result is an element of an offense,’ the accomplice must act ‘with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.’”25  In other words, the accomplice must meet the required mens rea of the offense, but, if the principal’s mental state is something less than purposeful, the State need only establish the lesser mens rea on the part of the accomplice to prove him or her guilty of the offense.26  Thus, there are two types of accomplice liability crimes: (1) conduct crimes (those that do not have a result component); and (2) result crimes (crimes that have a result element).  This article focuses on result crimes, where the State must prove that the defendant caused a particular outcome. 

 

III. Prior Precedent


      A.      ETZWEILER

 

In Etzweiler, the defendant gave his car keys to a friend who he knew was intoxicated.27  Shortly thereafter, the friend, while driving recklessly, collided with another car and caused the death of two of the passengers.28  The grand jury indicted the defendant with, inter alia, negligent homicide as an accomplice.29  When the defendant moved to quash all indictments against him, the superior court transferred five questions of law to the Supreme Court.30  The Supreme Court, however, only addressed one of the questions: whether the legislature, in enacting RSA 626:8, intended to impose criminal liability upon a person who lends his automobile to an intoxicated driver but does not accompany the driver, when the driver’s operation of the borrowed automobile causes death.31 

     

Examining the legislative intent for creating RSA 626:8, the Court noted that the statute abrogated the common-law distinction between principals and accessories and narrowly defined those situations in which an individual could be held criminally liable for the conduct of another.32  The state argued that the defendant aided the drunk driver in the commission of negligent homicide because he had the purpose of promoting or facilitating the offense of driving under the influence.33  The Court, however, held that under RSA 626:8, the “accomplice must aid the primary actor in the substantive offense with the purpose of facilitating the substantive offense.”34  Because the indictments did not include all the elements constituting the offense, the Court dismissed the indictments against the defendant.35 

     

Most notably, the Court opined that even if the indictments included all the elements of the constituting offense, the defendant could not be an accomplice to negligent homicide as a matter of law.36  The Court found that the state could not establish that the defendant’s acts were designed to aid the drunk driver in committing negligence, and also establish that the defendant was unaware of the risk of death that his conduct created.37  The Court could not rationalize that a person could be unaware of the risk but have the purpose to promote or facilitate the offense.38  Unsure whether section IV should be interpreted independent of section III, the Court grafted section III onto section IV even though the two sections were intended to accomplish different objectives.  Accordingly, the Court held, as a matter of law, that an individual may not be an accomplice to negligent homicide.39 

     

Justice Souter, in his special concurrence, disagreed with the lead opinion’s interpretation of the meaning of “accomplice” in section IV.40  According to Justice Souter, the Court could only guess whether the legislature’s intended meaning of “accomplice” in section IV meant “accomplice” as used in section III.41  Justice Souter opined that section IV failed to “give any comprehensible, let alone fair, notice of its intended effect” and was therefore unenforceable.42  Moreover, Justice Souter basically invited the legislature to amend the statute and clarify whether the use of “accomplice” in section IV implied the “purpose” contained in section III.43

     

Chief Justice John King’s dissent, however, disagreed that section IV created any ambiguity as to the legislature’s intended meaning of “accomplice.”44  According to Justice King, the majority incorrectly read section IV out of the statute.45  Rather, section IV, when viewed as part of the totality, is implicitly defined by RSA 626:8, section III(a).46  Under Justice King’s interpretation of the statute, a person is only criminally liable under RSA 626:8, IV for the crime of a principal if he acted purposefully with respect to the principal’s criminal conduct.47  With respect to the result of the principal’s actus reus, however, Justice King interpreted section IV as requiring a showing that the person acted with the same state of mind required of the principal.48  Accordingly, “[a] showing that a person merely acquiesced in or consented to a principal’s conduct is not enough to prove purposefulness under section III.  Rather, it must be demonstrated that the person participated actively in the principal’s conduct.”49 

     

Justice King found the court’s holding was problematic because requiring purposeful conduct with respect to the result of the principal’s offense effectively precludes criminal liability for aiding any homicide other than intentional homicide.50  Commenting on the legislature’s intent, Justice King concluded that “it was not the legislature’s design to exculpate one who purposely furthers another’s criminal conduct while grossly unaware of a substantial and unjustifiable risk that death will result.”51          

 

      B.   Horne

     

Less than two months after the Supreme Court decided Etzweiler, the Court faced the issue of accomplice liability again.52  En route from Weirs Beach to Concord, the defendant and another passenger each threw a soda bottle out the sun roof of their vehicle.53  The passenger suggested that the driver stop the car so that the defendant and the passenger could pick up rocks, and they both proceeded to find a number of rocks that they considered suitable for throwing at other automobiles.54  The defendant found the rock that ultimately caused the injury to the victim, but when he decided not to use the rock because it was too big, the passenger took the rock from him.55  Back in the vehicle, the defendant and the passenger began throwing rocks at oncoming vehicles.56  The defendant admitted to throwing a small rock at the victim’s car, while the passenger admitted to throwing the larger rock that crashed through the victim’s windshield and caused serious bodily injury.57  Following a jury trial, the defendant was convicted of being an accomplice to second degree assault, pursuant to RSA 626:8, IV.58 

     

On appeal, the defendant argued that the indictment was insufficient because it failed to allege that the defendant aided the passenger with the purpose of promoting or facilitating the crime of second degree assault.59  Citing Etzweiler, the Court reiterated its holding that “to prosecute one as an accomplice, the State must prove that the defendant acted with the purpose of promoting or facilitating the offense as required by RSA 626:8, III.”60  The court reviewed its analysis of the relationship between section III and IV and concluded that “section IV is not independent of section III, and that, therefore the elements set forth in section III must be alleged and proven by the State to establish accomplice liability.”61  

     

The Court agreed with the defendant’s argument, and held that the indictment did not allege that he acted with the purpose of promoting or facilitating the commission of the offense as required by RSA 626:8, III.62  The Court reversed and remanded based on the inadequacy of the indictment.63

     

Justice King concurred specially, based on the same reasons set out in his opinion in Etzweiler—that an accomplice must act purposefully with respect to the principal’s criminal conduct.64  Justice Souter also concurred specially based on his opinion in Etzweiler.65

     

As one commentator noted, Horne doused the potentially damaging fire set by the lead opinion in Etzweiler: that a person cannot be an accomplice to a non-purposeful offense.66  Horne expressly contemplated that the defendant could be reindicted and convicted as an accomplice to a reckless crime.67  “It apparently did not occur to the [Court] that [the defendant’s] conviction as an accomplice—even though he presumably did not intend [the] serious bodily injury result—could not have been squared with the lead opinion in Etzweiler.”68

 

      C.   Locke

     

In 1999, the Supreme Court had the opportunity to address the issue of accomplice liability yet again.69  The defendant was charged with reckless second-degree murder and robbery of the victim who was discovered on Pierce Island, an island park in Portsmouth in June, 1996.70   During an interview with police, the defendant’s compatriot related that he and the defendant had struck and kicked the victim.71  Later, following the defendant’s own inculpatory statements, he was indicted for one count of robbery and one count of reckless second degree murder, both as an accomplice and a principal.72   At trial, the superior court held that the defendant could not be charged as an accomplice to reckless second degree murder.73  The defendant moved to strike the “in concert with and aided by” language from the indictment because the allegation was surplusage, and argued that RSA 626:8 does not allow one to be charged as an accomplice to a crime requiring proof of recklessness as the culpable mental state.74  The superior court agreed, relying on Etzweiler.75

     

On appeal, the Supreme Court found that the trial court erred when it stuck “in concert with and aided by” from the indictment.76  The court reiterated that sections III and IV must be read together when a person is charged as an accomplice under RSA 626:8.77  Citing Etzweiler, the court held that section III requires the state to prove “that the accomplice’s acts were designed to aid the primary actor in committing the offense and that the accomplice had the purpose to make the crime succeed.”78  The Court agreed that Etzweiler controlled, however, the Court agreed with the state’s argument that Etzweiler does not preclude accomplice liability for aiding in any crime requiring a reckless mens rea.79 

     

Unlike Etzweiler, where the underlying offense was negligent homicide, the offense in Locke was reckless homicide.80  Under the reckless homicide statute, a person acts recklessly “when he is aware of and consciously disregards a substantial and unjustifiable risk” that death will result from his conduct.81  Thus, unlike negligent homicide, the principal must be aware of the risk of death.82  The court found that the defendant could intentionally aid his compatriot in the commission of a crime under circumstances where the compatriot was aware of a substantial and unjustifiable risk of death which he chose to disregard.83  The court held that, as a matter of law, “a person can act with the purpose of promoting or facilitating the commission of a reckless homicide and thus be charged as an accomplice to such crime.”84 

     

The court also reconciled Etzweiler with Horne, stating “[they] endorsed accomplice liability for reckless crimes.”85  Commenting that the Court reversed the defendant’s conviction in Horne “only because the indictment failed to allege that the defendant acted with the purpose of promoting or facilitating the underlying crime as required by section III,” the Locke court held that the superior court erred in striking the “in concert with and aided by” allegation from the murder indictment.86   

 

      D.   The Amendment

     

In 2001, the legislature added the following amendment to RSA 626:8, IV:

 

In other words, to establish accomplice liability under this section, it shall not be necessary that the accomplice act with a purpose to promote or facilitate the offense.  An accomplice in conduct can be found criminally liable for causing a prohibited result, provided the result was a reasonably foreseeable consequence of the conduct and the accomplice acted purposely, knowingly, recklessly, or negligently with respect to that result, as required for the commission of the offense.87

As explained by the Court in Anthony, infra, the amendment was not enacted to alter the original intent of the statute, but to clarify section IV in response to the precedent created by Etzweiler.88  Under the amended version of section IV, it is not “necessary that the accomplice act with a purpose to promote or facilitate the offense” in order for the state to prove accomplice liability.89  Rather, the accomplice must intentionally aid the principal in the conduct (the actus reus) and then be negligent with respect to the result.90 

 

IV. State v. Anthony

     

In Anthony, the defendant was indicted on a class B felony charge of accomplice to cruelty to animals for allegedly assisting her husband in binding a colt’s four legs together with the purpose of leaving the colt on the ground, which caused the colt to suffer pain and injury.91  At the state’s request, the trial court instructed the jury of the lesser included offense of accomplice to negligent cruelty to animals.92  The jury acquitted the defendant of the felony charge, but found her guilty of the lesser charge of negligence.93 

     

Relying on Etzweiler, the defendant appealed to the Supreme Court and argued that her conviction should have been reversed because a person cannot be an accomplice to a negligent result crime under New Hampshire law.94  At oral argument, the parties agreed that the 2001 amendment to RSA 626:8 overruled Etzweiler only as to result elements and so the question before the Court was whether cruelty to animals constitutes a result crime (a crime with a result element), or a conduct crime (a crime without a result element). 

     

After reviewing the 2001 amendment, the Court declared that it was a “legislative rejection of the interpretation of . . . [RSA 626:8] stated by the plurality in Etzweiler and reiterated . . . in Locke.”95  The Court found the Etzweiler plurality erred in its interpretation of the statute because the plurality held that the state must prove the elements of both sections III and IV to establish accomplice liability and could not reconcile the purposeful mens rea of accomplice liability and the culpability required for the substantive offense—negligence.96  After discussing the amendment, however, the Court found that the legislature did not intend to change the original intent of the statute, but rather to clarify it in response to Etzweiler.97  Most interesting, was the Court’s decision that even though the amendment did not require the state to prove an accomplice acted with “a purpose to promote or facilitate the offense,” RSA 626:8, III and IV as amended requires proof that (1) the accomplice intended to promote or facilitate another’s unlawful or dangerous conduct, and (2) that the accomplice acted with the culpable mental state specified in the underlying statute with respect to the result.98 

     

The defendant argued that even if RSA 626:8, IV, as amended in 2001, permitted a person to be charged as an accomplice to a negligent crime, the amended statute applies only to result-oriented crimes and that negligent cruelty to animals is not a result-oriented crime.99  Unfortunately for the defendant, the Court found the variation of negligent cruelty to animals with which she was charged was result-oriented.100  The Court found that the jury “could have concluded that the defendant intentionally aided her husband in confining the horse but was unaware of a substantial and unjustifiable risk that the animal’s attempts to free itself would injure it and cause it pain.”101  Accordingly, the Court held that a person can be convicted under RSA 626:8 as an accomplice to a negligent crime.102

 

V.   Analysis

     

According to one commentator, “the mixed views of courts on whether a person can be an accomplice to an unintentional crime are due, to a great extent, to a misapprehension of accomplice liability’s intent requirement.”103  The intent of the drafters of the Model Penal Code, which RSA 626:8 mirrors, was to create a statute that would specifically allow accomplice liability for unintentional crimes.104  In addition to requiring that an accomplice have the intent to “promot[e] or faciliat[e] the commission of an offense,” the Model Penal Code specifies that for result-oriented crimes “an accomplice in the conduct causing such [a] result is an accomplice in the commission of that offense,” if he meets the mens rea requirement of the underlying crime.105  The ambiguity exists, however, because it is unclear whether or not the drafters of the Model Penal Code intended for the terms of section 2.06(4) to override the requirements of section 2.06(3).106  That is, whether section 2.06(4)’s use of the term “an accomplice in the conduct” overrides section 2.06(3)’s requirement that the accomplice intends to promote or facilitate the commission of a specific offense.107  As evidenced by the discussion of New Hampshire’s accomplice liability jurisprudence in this article, the same ambiguity has plagued the Court’s application of RSA 626:8, III and IV.  According to one scholar, the soundest approach to resolving the ambiguity created by the Model Penal Code is to revamp unclear statutes so that they specify whether a person can be an accomplice to an unintentional crime.108  Apparently attempting such a “revamping,” the New Hampshire legislature basically codified Chief Justice King’s dissent in Etzweiler and amended RSA 626:8, IV so that courts must now evaluate whether the purported accomplice’s intent was directed to the specific conduct causing harm.

     

In Locke, which was decided before the amendment, the Court held that the accomplice would be convicted of a reckless crime, so long as he aided the principal and had the specific intent for the principal to commit murder.  This required the state to prove a higher mens rea for the accomplice than it would have to prove to convict the principal.  This elevated the perpetually incorrect application of the accomplice liability doctrine in Etzweiler and Horne, which, contrary to the intent of RSA 626:8, held the principal and accomplice to different standards. 

     

Reading the amended section IV independent of section III, it would appear that the state only needs to prove that an accomplice had the same mental state as the principal for crimes that have a result element as the actus reus.  In other words, the accomplice need only be negligent with respect to the resultant crime when he aids the principal.  Following the Court’s interpretation of RSA 626:8, III and IV in Anthony, however, the State has to prove that the accomplice intentionally aided the principal in the conduct (the actus reus) and was then negligent with respect to the result.  If, indeed, this is the application of the 2001 amendment the Court intended, the state now has a greater burden to prove an accomplice’s liability than a principal’s within the context of unintentional crimes, yet again holding accomplices and principals to different standards contrary to the intent of RSA 626:8. 

     

Considering the facts of Anthony, if the state only charged the defendant’s husband with negligent cruelty to animals, the state would not have to prove that he intentionally bound the colt’s legs together and was negligent with respect to the colt’s resulting injury.  Rather, the state would only have to prove that the defendant’s husband was negligent when he tied the colt’s legs together and that he was also negligent about the colt’s resulting injury.  This could potentially lead to a situation where the accomplice is acquitted even though the principal who may have been equally negligent is convicted. 

     

It is possible that the Anthony court misinterpreted RSA 626:8 when it read sections III and IV together.  Perhaps sections III and IV are ambiguous when read together because they were intended to be read separately and address different crimes.  RSA 626:8, III may be intended to govern only those offenses that do not have a result element.  In that situation, the accomplice has to have the purpose to facilitate the crime, and in order to convict the state has to prove that the accomplice intended to facilitate the crime.  RSA 626:8, IV on the other hand, may be intended to govern cases that have a result element.  In Anthony, the Court basically grafted section III onto section IV so that the state had to prove that the defendant had the aim of facilitating the conduct but that she could have been negligent in the result of the conduct. 

     

The Anthony court’s application of RSA 626:8 appears inconsistent with the intent of the statute.  If the principal can be found guilty when merely negligent with respect to both the conduct (binding the colt’s legs) and the result (causing it to suffer pain and injury), why should the accomplice be held to a higher standard?  Stated another way, why should the state be required to prove that the accomplice’s conduct was intentional but negligent as to the result when the state need only prove the principal acted negligently as to the conduct of the offense as well as the result?

 

Conclusion

     

Anthony established new precedent that it is possible for an accomplice to be perfectly aware of his conduct but fail to become aware of a serious risk that his conduct will cause.109  It would appear, however, that in its haste to correct the illogical application of RSA 626:8 in Etzweiler, the Anthony Court potentially opened the door to additional misapplications of New Hampshire’s accomplice liability statute.  Despite the legislature’s intent to clarify the ambiguity between RSA 626:8, III and IV by amending section IV in 2001, more clarity may yet be needed.  As one commentator observed, “the major mens rea question is what the mental state of an accomplice should be toward the substantive offense: is it sufficient that an ‘accomplice’ knew that the perpetrator intended to commit the crime, or should the prosecution have to prove that the accused accomplice possessed the mens rea defined by statute?”110  If liability were based upon mere knowledge, however, then an accomplice could be convicted on a lesser mental state than that which is required for the principal also leading to a contrary result than that intended by RSA 626:8.111  Perhaps LaFave and Scott’s view that that one who encourages or assists another to engage in negligent conduct that results in the commission of an unintentional crime should be held liable under the theory of criminal negligence rather than accomplice liability has some merit after all.112  If the State can convict a defendant as a principal without having to prove his purpose as to conduct, then it should bear a higher burden if it chooses to fall back on accomplice liability.   

 

Endnotes

* B.A., International Area Studies, Brigham Young University (2001); Juris Doctor/Master of Intellectual Property, Franklin Pierce Law Center (2005).  Assocaite, Albright, Stoddard, Warncik & Albright, Las Vegas, Nevada.  The author would like to thank the New Hampshire Chief Appellate Defender, Christopher M. Johnson and Senior Assistant Attorney General, Will Delker for their insight on New Hampshire criminal law and their encouragement and feedback.

1.   State v. Etzweiler, 125 N.H. 57, 65 (1984).

2.   State v. Anthony, ____ N.H. ____ ; 861 A.2d 773, 777 (N.H. 2004).

3.   Joshua Dressler, Understanding Criminal Law, § 30.02[A] (3d ed. 2001).  Professor Dressler teaches criminal law at McGoerge School of Law.

4.   Id. at § 30.05[A].

5.   State v. Foster, 522 A.2d 277, 283 (Conn. 1987).

6.   Dressler, supra, n. 3 at § 30.05[B][2].

7.   Id.

8.   Id.  A person’s conduct is “negligent” if it constitutes a deviation from the standard of care that a reasonable person would have observed in the actor’s situation.  Id. at § 10.04[D][2][a].  Conduct constitutes such a deviation if the actor takes an unjustifiable risk of causing harm to another.  Id.  “Criminal negligence” is conduct that represents a gross deviation from the standard of reasonable care. Id. at § 10.04[D][2][b]. 

9.   See Etzweiler, 125 N.H. at 65.

10. E.g. Id.; Echols v. State, 818 P.2d 691, 694-95 (Alaska Ct. App. 1991)(finding defendant cannot be convicted as an accomplice in a reckless assault).

11. E.g. People v. Wheeler, 772 P.2d 101, 103 (Colo. 1989)(affirming defendant’s conviction as an accomplice in a negligent homicide where defendant intended to promote or facilitate the principle’s conduct that negligently resulted in the death); Michel v. State, 752 So.2d 6, 10-12 (Fla. Ct. App. 2000)(stating accomplice may be convicted of vehicular homicide, an offense based on unintentional homicide, in which he procured the principal to drive his car, and allowed the principal to drive approximately 25 m.p.h. on an interstate highway, resulting in the victim’s death); State v. Chaney, 989 P.2d 1091, 1101 (Utah App. 1999)(stating defendant may be convicted as an accomplice in rape of a child, as long as he was at least reckless as to the possibility of intercourse, since recklessness was the minimum level of culpability required for rape).

12. Dressler, supra n. 3 at § 30.05[B][3].

13. Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 6.7(e) (2d ed. 1986)(advocating that one who encourages or assists another to engage in negligent conduct which results in an unintentional crime be held liable under the theory of criminal negligence rather than accomplice liability).

14. Id.

15. Id.

16. See Audrey Rogers, Accomplice Liability For Unintentional Crimes: Remaining Within The Constraints Of Intent, 31 Loy. L.A. L. Rev. 1351, 1364 (1998).  Professor Rogers teaches at Pace University School of Law.   

17. See e.g., Ala. Code § 13A-2-23 (1994) (“the intent to promote or assist the commission of the offense”); Alaska Stat. § 11.16.110 (Michie 1996)(“intent to promote or facilitate the commission of an offense”); Ariz. Rev. Stat. Ann. § 13-301 (West 1989) (holding same); Del. Code Ann. Tit. 11, § 271 (1995)(holding same); Ga. Code Ann. § 16-2-20(3) (Harrison 1994)(“[i]ntentionally aids or abets in the commission of the crime”); 720 Ill. Comp. Stat. 5/5-2 (West 1993)(“with the intent to promote or facilitate such commission [of an offense]”); Mo. Rev. Stat. § 562.041 (1979)(“purpose of promoting the commission of an offense”).

18. Ariz. Rev. Stat. Ann. § 13-301.

19. See e.g., Ala. Code § 13A-2-23 commentary (“What this section does is define complicity in clear, direct and explicit terms . . .  The test will be whether the accused [acted] with the intent to promote or assist the perpetration of an offense.).

20. See Anthony, 861 A.2d at 775-76.  The relevant portion of subsection III is derived from § 2.06(3)(a)(i) of the Model Penal Code, and subsection IV is derived from § 206(4).

21. See John S. Davis, Accomplice Liability For Unintentional Crime: Etzweiler and Horne Revisited, N.H.B.J., Vol. 30:2 at 95 (1989).

22. Etzweiler, 125 N.H. at 874 (citing State v. Bussiere, 118 N.H. 659, 663 (1978)).

23. Id. (quoting State v. Goodwin, 118 N.H. 862, 866 (1978)).

24. Etzweiler, 125 N.H. at 64.

25. RSA 626:8, IV (1984); Etzweiler, 125 N.H. at 64.

26. State v. Garcia, 98 P.3d 207, 212 (Ariz. App. Div. 1 2004).  A perfect example is negligent homicide.  A person is guilty of negligent homicide if he “negligently caused the death of another.”  The actus reus is causing the death of another.  The mens rea is negligence. 

27. Etzweiler, 125 N.H. at 61.

28.  Id.

29. Id.

30. Id.

31. Id.

32. Id. (citing State v. Jansen, 120 N.H. 616, 618-19 (1980)). 

33. Id. at 65.

34. Id.

35. Id.

36. Id.

37. Id. (emphasis added).

38. See id.

39. Id.

40. Id. at 68.

41. Id.

42. Id.

43. Id.  (“[i]t is of course open to the legislature to provide for accomplice liability more broadly than it has done in section III alone.”).

44. Id. at 74.

45. See id. at 75.

46. Id. at 74.

47. Id. 

48. Id.

49. Id. (citations omitted). 

50. Id. at 75.

51. Id. at 76.

52. State v. Horne, 125 N.H. 254 (1984)(per curiam).

53. Id. at 255.

54. Id.

55. Id.

56. Id.

57. Id.

58. Id.

59. Id. (emphasis added).

60. Id. at 255-56 (emphasis in original).

61. Id.

62. Id.

63. Id. at 255.

64. Id. at 257.

65. Id.

66. Supra, n. 21 at 102.

67. Id.

68. Id.

69. State v. Locke, 144 N.H. 348 (1999).

70. Id. at 349.

71. Id. at 349-50.

72. Id. at 350.

73. Id. at 351.

74. Id.

75. Id.

76. Id.

77. Id.

78. Id. at 352 (quoting Etzweiler, 125 N.H. at 63-4).

79. Id.

80. Id.

81. Id. (quoting RSA 626:2, II(c) (1996)). 

82. Id.

83. Id. at 352-53.

84. Id. at 353.

85. Id.

86. Id.

87. RSA 626:8, IV (2001)(emphasis added).

88. Anthony, 861 A.2d at 776.

89. Id.

90. Id.

91.  Id. at 774 (emphasis added).

92. Id.

93. Id.

94. Id. (citing Etzweiler, 125 N.H. at 65).

95. Id. at 775.

96. Id.

97. Id.

98.  Id. at 776 (quoting Riley v. State, 60 P.3d 204, 215 (Alaska App. 2002)).

99. Id.

100.      Id.

101.      Id. at 777.

102.      Id.

103.      Rogers, supra n. 16 at 1372.

104.      Id.

105.      Id.

106.      Id.

107.      Id.

108.      Id.

109.       Anthony, 861 A.2d at 777.

110.      Grace E. Mueller, The Mens Rea Of Accomplice Liability, 61 S. Cal. L. Rev. 2169, 2190 (1988).

111.      See id.

112.      See LaFave & Scott, supra n. 13 at § 6.7(e). 

James HarperJames E. Harper graduated from Franklin Pierce Law Center in June and is admitted to practice in Nevada. He practices with the law firm of Albright, Stoddard, Warnick & Albright in Las Vegas. Attorney Harper is the first recipient of the New Hampshire Bar Journal Editor's Award for this article.

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