Notice: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
ARTHUR W. ECHOLS, )
) Court of Appeals No. A-3307
Appellant, ) Trial Court No. 3AN-S87-7656CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1164 - October 4, 1991]
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark C. Rowland, Judge.
Appearances: Susan Orlansky, Assistant Public
Defender, and John B. Salemi, Public Defender,
Anchorage, for Appellant. Cynthia M. Hora,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews,* Superior Court Judge.
[Mannheimer, Judge, not participating.]
COATS, Judge.
BRYNER, Chief Judge, concurring.
Arthur W. Echols was convicted, following a jury trial,
of assault in the first degree, a class A felony. AS 11.41.200.
Echols appeals, arguing that Superior Court Judge Mark C. Rowland
did not properly charge the jury on the elements of her offense.
We agree and reverse Echols' conviction.
Arthur Echols was indicted based on an incident which
occurred when her husband, Melvin J. Echols, beat the Echols'
fourteen-year-old daughter, T.E., with an extension cord. The
grand jury charged Melvin Echols with assault in the first degree
based upon this incident, along with seven counts of sexual abuse
of his two daughters.1
T.E. testified that on Friday, November 4, 1983, while
Arthur Echols and her four other children were out of the house
and Melvin was asleep, T.E. went to the kitchen and took some
cookies. T.E. was not allowed in the kitchen. Her mother came
home, finding T.E. in the kitchen. Echols went downstairs for "a
second" to where Melvin slept. The two of them came back to the
kitchen. Melvin screamed at T.E., punched and slapped her, and
threw her to the floor. He left the room briefly but returned
with an extension cord. He then proceeded to beat T.E. with the
cord.
T.E. testified that her mother was in the kitchen
washing dishes while her father beat her. The beating lasted
five or ten minutes. At some point, Echols told her husband that
she saw blood. Melvin continued to beat T.E. for a few minutes
and then stopped.
After the beating, T.E. took a bath and cleaned herself
up. She then left the house through a second floor window and
went to a friend's house where she got on the school bus. After
discovering she was gone, Arthur Echols caught up with the school
bus and took T.E. home. She gave her breakfast and told her she
was not going to school that day. Melvin beat T.E. again later
that day and during the weekend.
T.E. returned to school on Monday, November 7, 1983.
She reported to her teacher that her father had beaten her. The
teachers and the school nurse observed scars and fresh wounds on
T.E.'s back, and contacted the Department of Family and Youth
Services (DFYS). T.E. was placed in state custody and has not
lived with her parents since that time.
The state charged Arthur Echols with assault in the
first degree under AS 11.16.110(2), based upon her solicitation
of Melvin Echols to commit the assault, a violation of AS
11.41.200(a)(1).2 Alaska Statute 11.16.110(2) provides that one
is legally accountable for conduct of another if: "with intent to
promote or facilitate the commission of the offense, the person
(A) solicits the other to commit the offense; or (B) aids or
abets the other in planning or committing the offense."
In analyzing AS 11.16.110, we start with the fact that
the statute requires the accomplice to act "with intent to
promote or facilitate the commission of the offense" (emphasis
supplied).3 The plain language of the statute seems to indicate
that the accomplice must intend the commission of the particular
crime charged. We have looked at the legislative history of AS
11.16.110 in order to determine the legislative intent behind
this statute. It appears from the tentative draft of the Alaska
Criminal Code revision that the legislature intended to codify
prior Alaska law in passing AS 11.16.110. The commentary to the
tentative draft states:
Subsection (2) codifies the current case
law that one is liable as a traditional
"accomplice" only if he acts "with intent to
promote or facilitate the commission of the
offense". Tarneff [sic] v. State, 512 P.2d
923, 928 (AK 1973), citing Thomas v. State,
391 P.2d 18, 25 (AK 1964). Acting with that
intent, the defendant must, under the Revised
Code, . . . "solicit or command" the
offense[.]
Alaska Criminal Code Revision Part II, at 31 (Tent. Draft 1977).
In Tarnef, the court stated: "It is well established at common
law and in Alaska that a person cannot be convicted of `aiding
and abetting' a crime unless it is shown that he had the specific
criminal intent to bring about the illegal end." Tarnef v.
State, 512 P.2d 923, 928 (Alaska 1973). The supreme court later
explained this language as follows:
The significance of this formulation of
the mens rea requirement was not fully
explicated in Tarnef. Nevertheless, this
language, which was addressed to Mahle's
general "criminal intent" seems to indicate
that "knowledge," would not satisfy the
mental aspect of accomplice liability.
Rather, the individual must also have had the
specific criminal intent to bring about the
illegal end.
Hensel v. State, 604 P.2d 222, 233-34 (Alaska 1979).
It therefore appears that in enacting AS 11.16.110 the
legislature intended to codify prior law, and that under prior
law a person could not be convicted of aiding and abetting a
crime unless the state showed "the specific criminal intent to
bring about the illegal end."
Arthur Echols argued that AS 11.16.110(2), the
accomplice liability statute, required the state to prove that
she intended T.E. to suffer serious physical injury in order to
prove her guilt as an accomplice of assault in the first degree.4
Judge Rowland relied on this court's decision in Bowell v. State,
728 P.2d 1220 (Alaska App. 1986), and concluded that, in order to
be guilty as an accomplice to assault in the first degree, Arthur
Echols needed only to have acted recklessly regarding the results
of Melvin Echols' conduct.
In Bowell, the defendant was convicted as an accomplice
of a first-degree sexual assault which was committed by Thomas.
We stated:
In other words, in order to convict
Bowell as an accomplice of Thomas' first-
degree sexual assault of B.S., the state was
required to prove that Bowell knew that
Thomas intended to engage in sexual
intercourse with B.S., that he intentionally
engaged in conduct facilitating Thomas'
efforts, and that at the time he aided
Thomas, he recklessly disregarded B.S.'s lack
of consent to Thomas' overtures.
Id. at 1223. In reaching this conclusion, we relied on the
provisions establishing accomplice liability in the Model Penal
Code, which is one of the sources for our revised criminal code.
However, as Echols points out, our reliance on the Model Penal
Code is problematical. The Model Penal Code contains a provision
which reads as follows:
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.
Model Penal Code 2.06(4) (1962). This section of the Model
Penal Code, if it were part of the Alaska Criminal Code, would
support the state's position in this appeal. However, there is
no similar provision in Alaska's revised criminal code.
The problem of when an accomplice can be held
accountable for the assistance or encouragement of reckless or
negligent conduct is discussed in 2 W. LaFave and A. Scott,
Substantive Criminal Law 6.7(e) (1986). The text contains the
following hypothetical and discussion:
(e) Assistance or Encouragement to
Reckless or Negligent Conduct. Assume that
A, the owner of a car, permits B, who A knows
is intoxicated, to operate his car on the
public highways, and that as a consequence B
is involved in an accident which causes the
death of C. Under principles of accomplice
liability, may A be viewed as an accomplice
to B's criminal-negligence involuntary man-
slaughter? In considering this question it
is useful to take account once again of the
teaching of United States v. Peoni that the
traditional definitions of accomplice
liability "have nothing whatever to do with
the probability that the forbidden result
would follow upon the accessory's conduct;
and that they all demand that he in some sort
associate himself with the venture, that he
participate in it as something that he wishes
to bring about, that he seek by his action to
make it succeed."
As we have seen, the Peoni rule is today
generally accepted to mean that one does not
become an accomplice by an intentional act of
assistance or encouragement merely because he
knows that such act will facilitate a crime.
If this is so, then does it not follow that
one also does not become an accomplice by an
intentional act of assistance or
encouragement merely because he knows that
such act might facilitate a crime? That is,
in the example given above, how can A be an
accomplice as to C's death when A did not
give the aid or encouragement with an intent
that such a result ensue?
Id. at 149 (footnotes omitted).
LaFave continues: "The cases in this area are
generally in a state of confusion. . . . However, it has been
held with some frequency that accomplice liability exists under
the circum-stances stated." Id. (footnotes omitted). LaFave
then states that "[t]his theory of accomplice liability has been
rejected by some courts, and it would seem inapplicable under
many of the modern accomplice statutes requiring an actual intent
to assist the commission of a crime." Id. at 150-51 (footnotes
omitted).
LaFave seems to suggest that accomplice liability for
reckless conduct is permitted under statutes which have a
specific provision similar to Model Penal Code 2.06(4), quoted
above. Id. at 150 n.110. When LaFave states that accomplice
liability "would seem inapplicable under many of the modern
accomplice statutes requiring an actual intent to assist the
commission of a crime," it appears he is referring to statutes
such as AS 11.16.110.
LaFave concludes with an argument for charging the
accomplice directly as a principal. He states:
This is not to say, however, to return
to the example of A permitting B to drive his
car, that A will necessarily escape
liability. A could well be found guilty of
criminal-negligence involuntary manslaughter
without being declared an accomplice of B. .
. .
Indeed, this approach is to be much
preferred over the accomplice liability
theory, for the latter is not limited by the
legal cause requirement and thus could easily
be extended to all forms of assistance or
encouragement to negligent or reckless
conduct.
Id. at 151-52 (footnotes omitted).
Based upon the plain language of AS 11.16.110, the
legislative history of that statute, and the analysis in LaFave
and Scott, we conclude that the trial court erred in instructing
the jury that it could convict Arthur Echols if she acted
recklessly regarding the results of Melvin Echols' conduct.
Under our analysis, AS 11.16.110 allows the state to convict
Arthur Echols for the crime of assault in the first degree only
if it proves that she intended "to promote or facilitate the
commission of the offense." In other words, Arthur Echols cannot
be convicted as an accomplice for acting recklessly as to whether
T.E. might suffer serious physical injury. In order to convict
her of assault in the first degree as an accomplice, the state
must show that when she solicited Melvin Echols to commit the
offense she intended that T.E. suffer serious physical injury.
We accordingly REVERSE Echols' conviction.5
BRYNER, Chief Judge, concurring.
I join in the court's decision construing AS
11.16.110(2) to mean that Echols could be convicted as an
accomplice only if she intended to inflict serious physical
injury on T.E. I wish to emphasize, however, that Echols could
properly have been charged with first-degree assault as a
principal rather than as an accomplice. See 2 W. LaFave and A.
Scott, Substantive Criminal Law 6.7(e) at 151-52 (1986).
Had the state charged Echols as a principal, proof of
specific intent would not have been necessary. Echols would have
been subject to conviction if the jury found that she recklessly
caused serious physical injury to T.E. by means of a dangerous
instrument. AS 11.41.200(a)(1). In context, this would have
required the state to prove (1) that T.E.'s injuries were caused
by Echols -- that is, that Echols' request to her husband to
discipline T.E. was a substantial factor in bringing about the
child's injuries,6 and (2) that, in making the request, Echols
acted recklessly -- in other words, that, in requesting her
husband to discipline T.E., Echols consciously disregarded a
substantial and unjustifiable risk that her husband would inflict
serious physical injuries on T.E. by means of a dangerous
instrument. See AS 11.81.900(a)(3).
The common law distinction between principals and
accessories has, of course, been discarded for most purposes.
See Rice v. State, 589 P.2d 419 (Alaska 1979); Tarnef v. State,
512 P.2d 923, 928 (Alaska 1973). Accordingly, it would normally
be unnecessary for the state to specify whether Echols was
charged as a principal or as an accomplice. In the present case,
however, the state relied exclusively on the accomplice liability
theory at trial, and that was the only theory addressed in the
trial court's instructions.7 Under these circumstances, the
trial court's failure to give appropriate instructions on the
culpable mental state for accomplice liability was not harmless
error, even though it is conceivable that Echols might have been
convicted as a principal without proof that she intended T.E. to
be seriously injured.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Arthur Echols and Melvin Echols were tried in a
joint trial. The jury ultimately found Melvin Echols guilty of
assault in the first degree and of sexually abusing T.E. Arthur
Echols has argued that the trial court erred in refusing to sever
her trial from that of her husband. Because of our disposition
of this case, it is unnecessary for us to decide this issue.
2. Alaska Statute 11.41.200(a)(1) provides: "A person
commits the crime of assault in the first degree if that person
recklessly causes serious physical injury to another by means of
a dangerous instrument."
3. The culpable mental state of "intent" is defined
as follows:
AS 11.81.900. Definitions.
(a) For purposes of this title, unless
the context requires otherwise,
(1) a person acts "intentionally" with
respect to a result described by a provision
of law defining an offense when the person's
conscious objective is to cause that result;
when intentionally causing a particular
result is an element of an offense, that
intent need not be the person's only
objective. . . .
4. Echols' attorney proposed the following
instruction:
A person is legally accountable for the
conduct of another person constituting an
offense if, with intent to promote or
facilitate the commission of the offense, the
person solicits the other person to commit
the offense or aids or abets the other person
in planning or committing the offense.
In order to establish that Arthur W.
Echols is legally accountable in this case,
the State must prove beyond a reasonable
doubt the following:
First, that the event in question
occurred at or near Anchorage, Alaska, and on
or about November 4, 1983;
Second, that Arthur W. Echols acted with
intent to promote or facilitate the
commission of the offense; and
Third, that Arthur W. Echols solicited
Melvin Echols to commit the offense or aided
or abetted Melvin Echols in planning or
committing the offense.
If you find from your consideration of
all the evidence that each of these
propositions has been proved beyond a
reasonable doubt, then you shall find the
defendant guilty. If, on the other hand, you
find from your consideration of all the
evidence that any of these propositions has
not been proved beyond a reasonable doubt,
then you shall find the defendant not guilty.
The court gave the following instruction:
On Count VIII for Mrs. Echols the State
must prove she is legally accountable for the
alleged conduct of Mr. Echols. A person is
legally accountable for the conduct of
another person constituting an offense, if,
with intent to promote or facilitate the
commission of the offense, the person
solicits the other person to commit the
offense.
In order to establish that Mrs. Echols
is legally accountable on Count VIII in this
case, the State must prove beyond a
reasonable doubt the following:
First, that the event in question
occurred at or near Anchorage on or about
November 4, 1983;
Second, that Mrs. Echols acted with
intent to promote or facilitate the
commission of Mr. Echols' offense by
soliciting his conduct;
Third, that the defendant, Mrs. Echols,
solicited Mr. Echols to commit the offense;
Fourth, that Mrs. Echols knew Mr. Echols
was going to engage in the conduct in which
he engaged; and
Fifth, that she acted recklessly regard-
ing the results of Mr. Echols' conduct.
5. To the extent that Bowell v. State, 728 P.2d 1220
(Alaska App. 1986), is inconsistent with this result, we overrule
that case.
6. See State v. Malone, _____ P.2d _____, Op. No. 1155
(Alaska App., September 6, 1991).
7. Moreover, the state apparently relied exclusively on
the accomplice liability theory in securing Echols' indictment.
To convict Echols as a principal would thus have posed serious
problems with variance. See Michael v. State, 805 P.2d 371
(Alaska 1991).
