Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Riley v. State (12/27/2002) ap-1847
Riley v. State (12/27/2002) ap-1847
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RICHARD L. RILEY, )
) Court of Appeals No.
A-7834
Appellant, )
Trial Court No. 4FA-99-2234 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. ) [No.
1847 December 27, 2002]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Niesje J.
Steinkruger, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for
Appellant. James L. Hanley, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Richard L. Riley and another man, Edward F. Portalla,
opened fire on an unsuspecting crowd of young people who were
socializing around a bonfire on the Tanana River near Fairbanks.
Two of the young people were seriously wounded. Riley and
Portalla were indicted on two counts of first-degree assault
(recklessly causing serious physical injury by means of a
dangerous instrument) and six counts of third-degree assault
(recklessly placing another person in fear of imminent serious
physical injury by means of a dangerous instrument).1 Riley was
ultimately convicted of all eight charges. In this appeal, Riley
challenges his two convictions for first-degree assault.
The State faced a problem in prosecuting Riley and
Portalla for first-degree assault: the physical evidence (in
particular, the ballistics analysis) did not reveal which of the
defendants weapons had fired the wounding shots. The bullet
recovered from the body of one victim was so deformed that it
could not be matched to either Rileys or Portallas weapon, and
the bullet that wounded the other victim passed through the
victims body and was never recovered. Thus, with respect to each
victim, the State could prove that the wound was inflicted by one
of the two defendants, but the State could not easily prove which
one.
At the close of Rileys trial, the jurors were
instructed that, with regard to each count of first-degree
assault, they should decide whether Riley acted as a principal
(i.e., by firing the wounding shot) or, if they could not decide
beyond a reasonable doubt which man fired the shots, they should
decide whether Riley acted as an accomplice (i.e., by aiding or
abetting Portalla to fire the wounding shot). The jurors found
Riley guilty as an accomplice in the wounding of both victims.2
Riley argues that his convictions for first-degree
assault are flawed because the jurors were misinstructed
regarding the elements of accomplice liability. The alleged flaw
concerns the culpable mental state that must be proved when the
State alleges a defendants complicity in another persons crime.
In Echols v. State, 818 P.2d 691 (Alaska App. 1991),
this Court addressed a situation where a wife was charged as an
accomplice to first-degree assault committed by her husband. The
States evidence showed that the defendant summoned her husband to
discipline their child, then stood by and watched while the
husband inflicted serious physical injury on the child by
whipping her with an electric cord.3 The question was whether
the wifes conduct was sufficient to establish her accountability
as an accomplice to the assault.
The underlying crime of first-degree assault required
proof that the principal (i.e., the husband) acted recklessly
with respect to the result (i.e., the infliction of serious
physical injury). The State argued that the wife could be
convicted as an accomplice to the first-degree assault because
(1) she solicited her husband to discipline the child and (2) she
acted with the culpable mental state required for the crime
i.e., she acted recklessly with respect to the possibility that
the beating would result in serious physical injury to the child.
But this Court held that the wifes complicity could not
be premised on recklessness. Rather, we held that the wife could
be held accountable as an accomplice to the first-degree assault
only if the State proved that she acted intentionally with
respect to the prohibited result i.e., that her conscious
objective was to have the child suffer serious physical injury.4
In the present appeal, Riley relies on Echols. He
contends that his jury instruction on accomplice liability was
flawed because it failed to clearly inform the jurors that the
State was obliged to prove that Riley intended to have Portalla
inflict serious physical injury on the victims (and not simply
that Riley acted recklessly with respect to the possibility that
Portallas conduct would cause this result).
The first hurdle Riley faces is that he did not object
to the accomplice liability instruction that he now challenges.
Riley must therefore show that the instruction amounted to plain
error. We conclude that the jury instruction did not amount to
plain error for two reasons: first, the instruction was not
obviously flawed, but only potentially ambiguous on the question
of the required culpable mental state; and second, the parties
summations to the jury cured the potential ambiguity in the
instruction.
But, more important, the State asks us to re-examine
our holding in Echols. We have done so and, for the reasons
explained here, we conclude that we misstated the law of
complicity in Echols.
We were wrong when we said in Echols that liability for
assault or criminal homicide under a complicity theory always
requires proof that the defendant intended to cause the injury or
the death, even though the underlying crime requires proof of
only a lesser culpable mental state (extreme indifference to the
value of human life, recklessness, or criminal negligence). When
a defendant solicits, encourages, or assists another to engage in
conduct, and does so with the intent to promote or facilitate
that conduct, the defendant becomes accountable under AS
11.16.110(2) for that conduct. If that conduct leads to
unintended injury or death, the defendant can be convicted of
assault or criminal homicide if the government additionally
proves that the defendant acted with the culpable mental state
required for the charged crime.
Thus, to establish Rileys guilt of first-degree assault
in the present case, the State did not have to prove that Riley
acted with the intention of causing serious physical injury.
Rather, the State had to prove that Riley acted recklessly with
respect to the possibility that serious physical injury would be
inflicted on another person through (1) Rileys own conduct or (2)
the conduct of another for which Riley was accountable under AS
11.16.110. And, to prove that Riley was accountable for
Portallas conduct under AS 11.16.110(2), the State had to prove
(1) that Riley solicited, encouraged, or assisted Portallas act
of shooting at the victims, and (2) that Riley did so with the
intent to promote or facilitate this conduct.
To summarize: when two or more people are jointly
accountable for conduct under Alaskas complicity statute, and if,
on the basis of that conduct, they are charged with a crime that
is defined in terms of an unintended injury or death (i.e., an
injury or death for which the accompanying culpable mental state
is something other than intentionally), that same culpable mental
state whether it be extreme indifference to the value of human
life, recklessness, or criminal negligence applies to the States
prosecution of all participants, whether they acted as principals
or accomplices, and regardless of whether the resulting injury or
death can be linked beyond a reasonable doubt to a particular
defendants conduct.
The challenged jury instruction on complicity, and why
we conclude that this instruction did not constitute
plain error under the Echols rule
AS 11.16.110 codifies the basic rules
governing vicarious liability in Alaska i.e., it
specifies the situations in which one person is
criminally responsible for another persons conduct.
Under AS 11.16.110(2)(B), a defendant is legally
accountable for another persons conduct if the
defendant aids or abets the other in planning or
committing the offense and if the defendant does so
with [the] intent to promote or facilitate the
commission of the offense. Riley was convicted of
first-degree assault under the theory that, acting with
the intent to promote or facilitate Portallas
commission of first-degree assault, he aided or abetted
Portalla to engage in the conduct that resulted in the
wounding of the victims.
In Echols, this Court was asked to construe
the phrase with intent to promote or facilitate the
commission of the offense as it applied to crimes that
require proof of a particular result (for instance, the
infliction of serious physical injury). We held that a
defendant does not intend to promote or facilitate the
commission of such an offense unless the defendant
intends that the prohibited result occur. Echols, 818
P.2d at 695. Thus, even though the principal might be
convicted on proof that he or she acted recklessly or
with criminal negligence with respect to the prohibited
result, the accomplice could not be convicted unless
the State proved that the accomplice acted
intentionally with respect to that result.
At Rileys trial, his attorney proposed the
following instruction concerning Rileys potential
liability as an accomplice to first-degree assault:
A person is legally accountable for the
conduct of another person which constitutes
the offense if, with intent to promote or
facilitate the commission of the offense, the
person aids or abets the other person in
planning or committing the offense.
In order to establish that the defendant
is legally accountable as an accomplice in
this case, the state must prove beyond a
reasonable doubt each of the following:
. . .
[that] Richard L. Riley acted with
intent to promote or facilitate the
commission of ... Assault in the First Degree
on [the victim]; [and]
[that Richard L. Riley] aided and
abetted another person in planning or
committing the offense.
Even though he was the proponent of
this instruction in the trial court, Riley
contends on appeal that the instruction was
flawed because it did not specifically
require the State to prove that Riley
intended that the victim suffer serious
injury. We agree with Riley that the
instruction is ambiguous on this point. It
could be read to require proof that Riley
acted with intent to promote or facilitate
the result required for first-degree assault
(i.e., serious physical injury). On the
other hand, the instruction could also be
read to require proof merely that Riley acted
with intent to promote or facilitate
Portallas dangerous conduct. Under Echols,
this second reading of the instruction would
be erroneous.
But we have repeatedly held that
ambiguities and potential flaws in jury
instructions can be cured by the arguments of
the parties.5 Here, the ambiguity in the
instruction was clarified and corrected by
Rileys attorney during his summation to the
jury. Rileys attorney told the jury:
Defense Attorney: [The instruction]
says [that the defendant has to] promote or
facilitate the crime. Facilitate what? The
offense. Its not just a crime or something
that happens. It has to be the [defendants]
objective thats people, the two people,
receive serious physical injury by means of a
dangerous instrument. Assault in the first
degree.
The prosecutor did not object to the defense
attorneys characterization of the elements of
the States proof, nor did the prosecutor
refute or contradict the defense attorneys
characterization during rebuttal. In fact,
the prosecutor argued that the jury could
infer, from Rileys actions, that Riley wanted
Portalla to wound the victims.
Based on this record, we conclude
that the parties closing arguments cured the
potential ambiguity in the complicity
instruction. Thus, even under the Echols
rule, the challenged jury instruction did not
give rise to plain error.
Moreover, for the reasons discussed
in the next section of our opinion, we
conclude that the rule announced in Echols is
wrong.
Why we conclude that our decision in Echols misstated
the law governing complicity
(a) The underlying problem
Under the law of complicity codified in AS
11.16.110(2), even though a defendant may have
solicited, encouraged, or assisted another persons
criminal conduct, the defendant can not be held
criminally responsible for the other persons
conduct unless the State proves that the defendant
acted with intent to promote or facilitate the
commission of the offense. The question is: What
did the legislature mean when they required proof
that the accomplice acted with the intent to
promote or facilitate the offense?
When the underlying offense requires proof of
the defendants intention to cause a particular result
(for example, first-degree murder under AS 11.41.
100(a)(1), a crime that requires proof of an intent to
cause death), the phrase intent to promote or
facilitate the commission of the offense seems to offer
little trouble. Because the principal must intend to
cause death, any accomplice to first-degree murder must
likewise intend to cause death.
But what if the underlying offense is defined
in terms of an unintended result? For example, a
person commits second-degree murder under AS
11.41.110(a)(2) by unintentionally causing a death
while engaged in conduct manifesting an extreme
indifference to the value of human life. Similarly, a
person commits manslaughter under AS 11.41.120(a)(1) by
unintentionally causing a death while acting recklessly
with respect to the possibility that their conduct
would cause death. When the underlying crime is
defined in terms of an unintended result, what does AS
11.16.110(2) mean by the phrase intent to promote or
facilitate the commission of the offense?
In Echols, this Court interpreted the
complicity statute in the context of a prosecution for
first-degree assault, a crime that requires proof that
the defendant acted recklessly with respect to a
prohibited result (infliction of serious physical
injury). We held that even though a person could be
convicted of first-degree assault as a principal upon
proof that they acted recklessly with respect to the
prohibited result, a person could not be convicted as
an accomplice unless the State proved a different,
higher culpable mental state. Specifically, we held
that whenever the underlying crime requires proof of a
particular result, the statutory requirement that an
accomplice inten[d] to promote or facilitate the
commission of the offense means that the State must
prove that the defendant acted intentionally with
respect to this prohibited result.6
While this construction of the statute may
have seemed plausible under the facts of Echols (which
we discuss in more detail below), it leads to counter-
intuitive results in situations like the one presented
in Rileys appeal.
For example, let us assume that Riley and
Portalla engaged in the same conduct (jointly firing
weapons into a crowd) but, through misfortune, one of
their victims was killed. Let us further assume that
the State believed that it was impossible to prove,
beyond a reasonable doubt, that this death was
intended, so the State charged both defendants with
manslaughter. And finally, let us assume that the
evidence linking the homicide to either Rileys or
Portallas personal conduct was so inconclusive that it
was impossible to say, beyond a reasonable doubt, which
of them was the principal and which the accomplice.
Under the rule of Echols, neither Riley nor
Portalla can be convicted of manslaughter in this
hypothetical situation. The State can prove that both
defendants acted recklessly with respect to the
possibility that their conduct would cause human death,
and this culpable mental state would be sufficient to
establish the principals guilt of manslaughter. But
the State can not prove (beyond a reasonable doubt)
which of the defendants was the principal. This means
that the State will have to prove both defendants guilt
under a complicity theory. And Echols holds that, to
prove guilt under a complicity theory, the State has to
prove that the defendants acted with the intent to
kill. In effect, Echols says that, under these
circumstances, the State has to prove the defendants
guilty of first-degree murder (intentional taking of
human life) or the defendants will escape criminal
liability for the homicide.
(b) The Echols rule departs from the common-law
rule
Echols has not found favor among legal
scholars. See, for example, the article by Audrey
Rogers, Accomplice Liability for Unintentional Crimes,
31 Loyola of Los Angeles Law Review 1351 (1998), which
cites Echols as an example of an overly narrow
interpretation of the mens rea required for accomplice
liability.7 And, indeed, Echols represents a
distinctly minority view on this issue.8
This is not to say that other states impose
accomplice liability without proof of mens rea. Quite
the opposite. It is universally acknowledged that
accomplice liability can not be based solely on the
fact that a persons words or actions had the effect of
encouraging or assisting another to commit a crime.
The government must also prove, at a minimum, that the
accomplice provided the encouragement or assistance
with knowledge of the other persons criminal design.
Many common-law decisions and many complicity statutes
(such as Alaskas) require the government to prove, not
only that the defendant knew of the other persons
criminal design, but also that the defendant intended
to further that criminal design. As stated in Perkins
& Boyce,
Aid or encouragement to another who is
actually perpetrating a felony will not make
the aider or encourager guilty of the crime
if [the aid or encouragement] is rendered
without mens rea [ that is,] if the giver
does not know or have reason to know of the
criminal intention of the other. ... For
guilt as [an accomplice,] it is necessary
that the acts [of assistance] or words of
encouragement be employed with that intent
... . In general[,] it is the abettors state
of mind rather than the state of mind of the
perpetrator which determines the abettors
guilt or innocence[.]
Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd ed. 1982),
p. 743. LaFave & Scott states the same rule:
Under the usual requirement that the
accomplice must intentionally assist or
encourage, it is not sufficient that he
[purposely] engaged in acts which, as it
turned out, did give assistance or
encouragement to the principal. Rather, the
accomplice must intend that his acts have the
effect of assisting or encouraging another.
Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law (1986),
6.7(c), Vol. 2, p. 143.
The common-law courts were split as to whether an act
of encouragement or assistance, combined with mere
knowledge of another persons criminal design as
opposed to an intent to promote or facilitate the other
persons criminal design was sufficient to establish
complicity. Courts would sometimes hold defendants
liable as accomplices to treason or other heinous
felonies merely upon a showing that the defendant
knowingly provided assistance to the traitor or the
felon. But the courts generally held that knowledge
was not enough that complicity required proof of the
defendants purpose to advance the criminal activity
when the underlying crime was less serious. See
Perkins & Boyce, pp. 745-48; LaFave & Scott, 6.7(d),
Vol. 2, pp. 145-48.
An early draft of the Model Penal Code would have
allowed complicity to be established by proof that the
defendant provided aid or encouragement with knowledge
of the other persons intended criminal venture, even
though the defendant lacked an accompanying purpose to
promote or facilitate that criminal venture. But this
provision was removed from the Model Penal Code after
debate. See Perkins & Boyce, p. 748; LaFave & Scott,
6.7(d), Vol. 2, p. 148.9
But here we reach the critical question: If a
defendant provides aid or encouragement to another, acting not
only with knowledge of the other persons intention to engage in
unlawful or dangerous conduct, but also with the intent to
promote or facilitate that unlawful or dangerous conduct, can the
defendant be held accountable as an accomplice for a crime
arising from the unintended consequences of that conduct? At
common law, the answer is yes.
The rule at common law is that when a person purposely
assists or encourages another person to engage in conduct that is
dangerous to human life or safety, and unintended injury or death
results, it does not matter which person actually caused the
injury or death by their personal conduct. Any participant can
be convicted of assault or manslaughter (or any similar crime
involving proof of an unintended result) so long as the
government can prove that the participant acted with the culpable
mental state required for the underlying crime recklessness,
criminal negligence, extreme indifference to the value of human
life, etc..
For example, as noted in Perkins & Boyce, [t]hose
present at an unlawful fist fight [who] encourage continued blows
by shouts or gestures ... will be guilty of manslaughter if death
should ensue.10 See People v. Terry, 460 N.E.2d 746 (Ill. 1984),
holding that, under the common law, when a group of men conspire
to commit a battery, and the battery leads to the death of the
victim,
[e]ach person ... [is] responsible for the
conduct of the other[s] ... done in
furtherance of the intended battery. [If
the] result of their concerted acts was
murder ... , all are legally accountable for
that murder.
Terry, 460 N.E.2d at 749. Accord, Carlisle v. State, 58 So.2d
638, 640 (Ala. App. 1951) (holding a defendant guilty of
manslaughter when he participated in an assault that left the
victim dead).
Similarly, if two drivers engage in an unlawful race on
a public highway, thus encouraging each other to drive
recklessly, both will be guilty of manslaughter if one of them
strikes and kills a third person.11 See, e.g., People v. Abbott,
445 N.Y.S.2d 344 (N.Y. App. 1981); Jones v. Commonwealth, 247
S.W.2d 517 (Ky. 1952).
And courts applying the common law frequently hold that
a person who knowingly allows and encourages an intoxicated
person to drive a car can be held liable as an accomplice to
manslaughter if the intoxicated person kills someone.12 Thus, in
State v. Whitaker, 259 S.E.2d 316 (N.C. App. 1979), the court
stated:
[W]hen [unintended] death results from the
operation of a motor vehicle by an
intoxicated person ... , [and] the owner [of
the vehicle] is present in the vehicle and
... with his knowledge and consent permits
the intoxicated person to operate the
vehicle[, the owner] is as guilty [of
manslaughter] as the intoxicated driver.
Whitaker, 259 S.E.2d at 319. Accord, State v. Morris, 456 S.W.2d
840, 846 (Tenn. 1970)13; Lewis v. State, 251 S.W.2d 490, 493-94
(Ark. 1952); Story v. United States, 16 F.2d 342, 344 (D.C. App.
1926); Ex parte Liotard, 217 P. 960, 961 (Nev. 1923).
Another example of the common-law rule of complicity is
Black v. State, 133 N.E. 795 (Ohio 1921), a case in which several
police officers decided to test their marksmanship by shooting at
a target at the back of a saloon. One of the shots (it was
impossible to tell which one) passed through the saloon wall and
killed a passerby. The Ohio Supreme Court ruled that all of the
participating officers were criminally responsible for the
unintended death:
Where men combine either by express agreement
or by actual conduct in the commission of an
unlawful act ... [,] each and all of those so
participating are held equally liable for any
and all of the proximate results that could
naturally and reasonably be anticipated ... .
Black, 133 N.E. at 797.
In another case, Ritzman v. People, 110 Ill. 362 (Ill.
1884), 1884 WL 9892, a group of young men trespassed
into an orchard to steal apples. When the land owner
confronted them, they stoned him with hard clods of
earth. One of these missiles hit the land owner in the
head, killing him. It could not be determined which of
the assailants struck the fatal blow. The Illinois
Supreme Court held that any of the participants who
purposely encouraged or assisted the battery could
properly be convicted as an accomplice to involuntary
manslaughter:
[W]e think it is wholly immaterial whether
the missile in question was thrown by the
hand of the accused or of some one of his co-
trespassers. That the defendant was present
and, to say the least of it, encouraging the
perpetration of the offense can not be
denied ... . [By encouraging] the offense,
... he is made a principal, and equally
guilty with the one who personally gave the
fatal blow.
Ritzman, 1884 WL at *4.
The same result was reached in State v. Guyton, 635
S.W.2d 353 (Mo. App. 1982), a case in which the
defendant participated in an assault on the victim,
resulting in the victims death. The court upheld the
defendants conviction for manslaughter under a
complicity theory. The court explained,
[T]he defendants liability for manslaughter
is not dependent upon her intent to promote
the commission of manslaughter. Her
liability stems from her intent to aid and
abet the assault out of which the
manslaughter arose. ... If the defendant
aids the actor in an assault, with the intent
to promote that offense, and the actor
unintentionally kills the victim, then the
defendant is liable for manslaughter as an
aider and participant.
Guyton, 635 S.W.2d at 358.
Similarly, in People v. Bolden, 375
N.E.2d 898 (Ill. App. 1978), a group of men
were each convicted of involuntary
manslaughter based on evidence that, acting
together, they fired some 15 to 20 shots into
the first-floor breezeway of an apartment
building. Two of these shots struck a woman
who lived in the building, killing her. It
could not be determined which weapon or
weapons fired the fatal bullets.14
The court acknowledged that, under
the common law of Illinois, [t]o be
accountable for the acts of another, one must
have a specific intent to promote or
facilitate the commission of a crime.15
However, the court ruled, To be guilty of
involuntary manslaughter[,] one need not
intend that death ensue from his reckless
acts, as the only mental state required is a
conscious disregard of a substantial and
unjustifiable risk that death or great bodily
harm will be the result of such acts.16 The
court concluded that a person could be
convicted as an accomplice to involuntary
manslaughter if the person intentionally
abetted someone elses reckless conduct,
consciously disregarding a substantial and
unjustifiable risk that this conduct would
result in death or great bodily injury.17
Thus, if the government showed that a
defendant purposely encouraged or aided the
shooting spree, acting with conscious
disregard of a substantial and unjustifiable
risk that the shooting spree would cause
someones death, that defendant could properly
be convicted of involuntary manslaughter
under a complicity theory.18
(c) The Echols rule departs from the
interpretation adopted by other states whose
complicity statutes, like Alaskas, are based on
the Model Penal Code
Alaskas complicity statute is based on Model
Penal Code 2.06(3). This section reads:
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
(i) solicits [the] other person to
commit it, or
(ii) aids or agrees or attempts to
aid [the] other person in planning or
committing it, or
(iii) having a legal duty to
prevent the commission of the offense,
fails to make proper effort to do so[.]
In the Model Penal Code, this provision is immediately followed
by 2.06(4), a section which addresses the legal issue
at the heart of this appeal: the culpable mental state
required to establish a persons complicity in an
offense involving a particular prohibited result.
Section 2.06(4) reads:
When causing a particular result is an
element of an offense, an accomplice in the
conduct causing [that] 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.
Professor LaFave discusses these two sections of the
Model Penal Code in 6.7(e) of his treatise on criminal
law, but his discussion is uncharacteristically
illogical. LaFave begins his discussion by raising the
issue of whether the owner of a car can be held
accountable as an accomplice to involuntary
manslaughter if the owner knowingly permits an
intoxicated driver to use the car, and the intoxicated
driver kills someone. Professor LaFave acknowledges
that courts have often upheld convictions in these and
other related circumstances:
[I]t has been held with some frequency that
accomplice liability [for involuntary
manslaughter] exists under [these]
circumstances[.] The most common case
[involves] the example given above[, in
which] a car owner has permitted a person
known to be intoxicated to operate his
vehicle, but the same result has been reached
on quite different facts.
LaFave & Scott, 6.7(e), Vol. 2, pp. 149-150. The author then
offers a footnote that cites cases in which defendants
were held liable as accomplices to manslaughter for
purposely assisting people who were engaged in other
life-threatening activities. He then offers a
rationale for these court decisions:
[T]he assumption [of these cases] apparently
is that giving assistance or encouragement to
[some]one [who] it is known will thereby
engage in conduct dangerous to life should
suffice for accomplice liability as to crimes
defined in terms of recklessness or
negligence. This conclusion [is] permitted
under some accomplice liability statutes[.]
Id. In the footnote that accompanies this text, Professor LaFave
cites 2.06(4) of the Model Penal Code as a statute that would
impose accomplice liability in this situation. He quotes the
Commentary to 2.06(4), which states that this section codifies
the rule that a person who urges a driver to increase his speed
[to an unsafe level] stands in the same position as the driver if
a homicide or injury occurs. Id., n.110.
Then Professor LaFave makes an illogical statement:
This theory of accomplice liability ...
would seem inapplicable under many of the
modern accomplice statutes [that follow Model
Penal Code 2.06(3) by] requiring an actual
intent to assist the commission of a crime.
Id., pp. 150-51.
This statement is illogical because it appears to be
premised on the idea that Model Penal Code 2.06(3) and Model
Penal Code 2.06(4) codify contradictory rules of accomplice
liability. But the Model Penal Code was drafted as a unified
whole, not as a menu of alternative formulations of the law. The
drafters of the Model Penal Code obviously thought that 2.06(3)
was harmonious with 2.06(4).
The explanatory note to Model Penal Code 2.06 states
that subsection (4) deals with a special case that arises when an
actor is an accomplice in conduct within the meaning of
[ 2.06(3)], and when a criminal result anticipated or
unanticipated flows from that conduct.19 In fact, the Model
Penal Code commentary explains that 2.06(3) and 2.06(4) were
intended to be read together: 2.06(3) defines the conduct for
which an accomplice can be held accountable, while 2.06(4)
clarifies that, when that conduct produces a result prohibited by
law, the accomplices culpable mental state with respect to that
result (and, thus, the accomplices guilt or innocence, or the
accomplices degree of guilt) must be evaluated separately from
anyone elses culpable mental state.
One of the primary aims of the Model Penal Codes
approach to accomplice liability was to leave behind the common-
law concepts of principals and accessories, and to have a persons
criminal liability rest on conduct either conduct that they
performed personally or conduct of another person for which they
can be held accountable under the various complicity provisions
of 2.06.20
In conformity with this approach, the commentary to
2.06(3) explains that the language requiring an accomplice to act
with the purpose of promoting or facilitating the commission of
the offense actually refers to the accomplices conscious
objective [of] bringing about ... conduct that the Code has
declared to be criminal.21 According to this commentary, an
accomplice must have the purpose to promote or facilitate the
particular conduct that forms the basis of the charge.22 (As we
explain below, this is generally how the phrase has been
interpreted in those states that have adopted the Model Penal
Code formulation of complicity.)
The sibling provision, 2.06(4), was designed to
clarify the scope of accomplice liability that might otherwise
follow from 2.06(3). Rejecting the notion that an accomplice
should be held accountable for any and all objectively
foreseeable results of the principals conduct23, the drafters of
the Model Penal Code codified the rule that even though several
defendants are accountable for the same criminal conduct under
2.06(3), each defendants level of culpability with respect to
the results of that conduct must be assessed separately, based on
each individuals culpable mental state:
Subsection (4) makes it clear that
complicity in conduct causing a particular
criminal result entails accountability for
that result so long as the accomplice is
personally culpable with respect to the
result to the extent demanded by the
definition of the crime. Thus, if the
accomplice recklessly endangers life by
rendering assistance to another, he can be
convicted of manslaughter if death results,
even though the principal actors liability is
at a different level. In effect, ... the
homicidal act is attributed to both
participants, with the liability of each
[participant] measured by his own degree of
culpability toward the result.
Model Penal Code, Comment to 2.06(4), p.
321. In an accompanying footnote (footnote
70), the Comment explains that a defendants
complicity in an unintended homicide would
not require proof of intent to kill, but
rather proof that the defendant acted with
the culpable mental state required for the
underlying crime:
A manslaughter prosecution could be brought
on the theory that the defendant consciously
disregarded a substantial and unjustifiable
risk that death would result from the
assisted conduct ... [or a] murder
prosecution could be brought on the theory
that the defendant was ... reckless under
circumstances manifesting extreme
indifference to the value of human life.
When we examine court decisions
from states that have complicity statutes
modeled after 2.06(3) of the Model Penal
Code (statutes requiring that an accomplice
act with the intent or the purpose of
promoting or facilitating the offense)24, we
find that the great majority have rejected
Professor LaFaves suggestion that this phrase
precludes accomplice liability unless the
government proves that the defendant intended
to cause the prohibited result. Instead,
these states have interpreted their statutes
in conformity with the Model Penal Code
commentary.
In particular, with respect to
offenses that involve a resulting injury or
death, these courts hold that accomplice
liability requires proof (1) that the
accomplice intended to promote or facilitate
anothers unlawful or dangerous conduct, and
(2) that the accomplice acted with the
culpable mental state specified in the
underlying statute with respect to the
resulting injury or death. Thus, these
courts uphold accomplices convictions for
unintended criminal homicides e.g., extreme
indifference murder or reckless manslaughter
based on proof that the accomplice, acting
with the culpable mental state required for
the underlying crime, purposely encouraged or
aided another person to engage in conduct
that posed a substantial and unjustifiable
danger to human life.
For example, the Alabama case of Ex
Parte Simmons, 649 So.2d 1282 (Ala. 1994),
involved a fact situation quite similar to
the facts of Rileys case. The defendant,
Simmons, was one of a group of men who
recklessly fired weapons toward a crowd of
people. A three-year-old child was struck by
a bullet and killed. The States expert
witness testified that the fatal bullet could
have been fired from any of the revolvers and
semi-automatic pistols that were used in the
shoot-out. That is, it could not be
determined ... which of the men fired the
fatal shot.25
Because the government could not
prove which of the men fired the fatal shot,
the government prosecuted Simmons for
reckless murder under a theory of accomplice
liability. (The Alabama crime of reckless
murder is the equivalent of second-degree
murder under AS 11.41.110(a)(3): that is,
Simmons was convicted of killing another
person while engaged in conduct manifesting
extreme indifference to human life.)26 The
governments theory was that Simmons purposely
encouraged or aided the reckless conduct that
resulted in the death of the child.
The Alabama Court of Criminal
Appeals reversed Simmonss conviction; see
Simmons v. State, 649 So.2d 1279 (Ala. Crim.
App. 1992). Essentially, the appeals court
adopted the same reasoning that this Court
adopted in Echols: a person can not intend[]
to promote or assist the commission of
reckless conduct.27 But the Alabama Supreme
Court disagreed and reinstated Simmonss the
murder conviction:
Accomplice liability does not require that
the accomplice intend for the principal to
act in a reckless manner. Rather, accomplice
liability requires only that the accomplice
intend to promote or to assist the principal,
having knowledge that the principal is
engaging in, or is about to engage in,
criminal conduct. See [Alabama Statute]
13A-2-23, Committee Comments. The mental
state required for complicity is the intent
to aid the principal in the criminal act or
conduct, not the intent of the principal that
death occur either intentionally or
recklessly. In other words, for a person to
be guilty of reckless murder as an
accomplice, he need not know or decide
whether the principal will act intentionally
or recklessly; rather, the accomplice need
only have knowledge that the principal is
engaging in reckless conduct and
intentionally assist or encourage that
conduct with the intent to promote or
facilitate its commission.
Ex Parte Simmons, 649 So.2d 1282, 1284-85 (Ala. 1994) (citations
omitted).
The Texas Court of Criminal Appeals reached the same
result on analogous facts in State v. Mendez, 575
S.W.2d 36 (Tex. Crim. App. 1979). In Mendez, the
defendant and two friends went drinking, armed
themselves, and fired several shots at two cars. Then
one of the defendants companions began shooting
randomly at houses. One of these shots killed a home
owner who was asleep in bed. The Texas court held that
the defendant was properly convicted of involuntary
manslaughter under a complicity theory because the
defendant intentionally solicit[ed] or assist[ed] an
individual in committing a reckless act. Id. at 38.
In People v. Novy, 597 N.E.2d 273 (Ill. App. 1992), the
court construed its Model Penal Code-based complicity
statute to allow the defendants conviction for reckless
murder based on facts somewhat analogous to the facts
of Echols. The court stated:
It need not be shown that the defendant had a
specific intent to kill or participated in a
preconceived plan to commit murder. Where
there is a common design to participate in an
illegal act, such as aggravated battery to a
child, and death occurs during the
prosecution of the common objective, all
participants are guilty of murder. Such a
common design can be inferred from the
circumstances surrounding the perpetration of
the unlawful conduct such as: presence at
the scene of the crime without disapproval or
opposition; a continued close association
with the perpetrator after the criminal act;
a failure to report the incident to the
authorities; and/or the subsequent concealing
or destroying of evidence of the crime. ...
The defendants acts need only have
contributed to the death, and the defendant
may be accountable even though he had no
intent to and did not personally kill the
victim.
In the instant case, even if it is
assumed that defendant did not inflict the
fatal blows on James, she admitted that she
did hit James in the head, beat him with a
belt, and inflicted other forms of abuse on
him. Furthermore, she was aware of the
severity of the beatings inflicted on James
by Keith Novy. She told the police on
December 2, 1989 that just two weeks before
James death, Keith struck the two childrens
heads together so hard that defendant heard
it in the kitchen. It was after this that
James began to show signs of severe head
injury. Defendant was also aware that Keith
had at least threatened James with a baseball
bat, and it is not an unreasonable inference
from all the evidence that Keith hit James in
the head with the bat and defendant knew
this. Defendant was well aware of the
severity of James injuries. Despite this,
defendant continued to associate with Keith
Novy, she did not inform the authorities of
the batteries upon James, despite numerous
opportunities to do so, and she even
concealed the evidence of the offense by
making excuses for James injuries and
absences. We think that the evidence is
sufficient to support a finding of a common
design to batter the victim and that a
[reckless murder] conviction based upon a
theory of accountability is supported by the
evidence.
Novy, 597 N.E.2d at 295-96.
Similarly, in People v. Taylor, 557 N.E.2d 917 (Ill.
App. 1990), the court upheld the defendants conviction for
involuntary murder based on evidence that she purposely assisted
two other men in their planned assault on the victim. The court
said: Although it is not clear whether the defendant intended
for Taylor and Brazelton to kill Boldin, it is clear that she
played an integral part in the plan by delivering him to the
perpetrators knowing that some harm would come to him. This, we
believe, is all that is necessary for making her legally
responsible for the acts of Taylor and Brazelton.28 Another
Illinois appeals court reached the same result in People v. Cole,
625 N.E.2d 816, 820-21 (Ill. App. 1993) (holding that the
defendant was properly convicted of involuntary murder when he
acted to further an assault on the victim, from which the victim
died).
In Hooks v. State, 416 A.2d 189 (Del. 1980), the
Delaware Supreme Court held that the defendant was properly
convicted of first-degree murder (reckless murder in the
commission of a felony) based on evidence that the defendant
purposely participated in the underlying felony and acted with
recklessness regarding the possibility that someone might die.
The court declared that, under Delawares complicity statute
(based on the Model Penal Code), accomplice liability did not
depend on whether each accomplice had the specific intent to
commit murder, but whether the accomplice intended to promote or
facilitate the principals conduct constituting the offense. The
defendants did not have to specifically intend that the result, a
killing, should occur.29
The Hooks court construed its complicity statute in
this manner because the court concluded that the Delaware
legislature had intended to codify the pre-existing law of
complicity and because, under both the common law and prior
Delaware law, accomplices did not have to specifically intend ...
the result.30
In People v. Wheeler, 772 P.2d 101 (Colo. 1989), the
Colorado Supreme Court reached the same interpretation of its
Model Penal Code-based complicity statute. The court upheld the
defendants conviction as an accomplice to criminally negligent
homicide, over the defendants objection that a person can not
intend an unintentional killing. The court explained that the
language of the complicity statute, intent to promote or
facilitate the commission of the offense, means that an
accomplice must act with
intent to promote or facilitate the act or
conduct of the principal. This language does
not require that the [accomplice] intend for
the principal to cause death.
Wheeler, 772 P.2d at 103. The court
reaffirmed this interpretation of the
complicity statute in Bogdanov v. People, 941
P.2d 247 (Colo. 1997):
The principle we enunciated in Wheeler is
that when [an accomplice] intentionally
assists or encourages another whom the
[accomplice] knows will thereby engage in
conduct that grossly deviates from the
standard of reasonable care and poses a
substantial and unjustifiable risk of death
to another, such a mental state should
suffice for complicity liability for an
underlying crime defined by the culpable
mental states of recklessness or negligence.
Bogdanov, 941 P.2d at 251.
Accord, State v. Locke, 761 A.2d
376, 379 (N.H. 1999) (holding that a
defendant who purposely aided a friend in
beating another man was properly convicted as
an accomplice to extreme indifference murder
when the victim died); State v. Goodall, 407
A.2d 268, 278 (Maine 1979) (holding that a
defendant who intentionally participated in
an assault was properly convicted as an
accomplice to manslaughter when another
assailant caused the victims death);
Commonwealth v. Bridges, 381 A.2d 125, 128
(Pa. 1977) (upholding the defendants
conviction for reckless murder when the
defendant participated in a group attack on
the victim; during the assault, one of the
other assailants drew a knife and stabbed the
victim, and the victim later died from this
wound).
(d) Based on the foregoing, we conclude that
Echols was wrongly decided
Alaskas complicity statute, AS 11.16.110(2),
is based on Model Penal Code 2.06(3). It specifies
that a person can be held accountable for the conduct
of another if the person (1) solicits that conduct,
encourages the conduct, or assists in planning or
performing the conduct, and (2) when doing so, the
person acts with intent to promote or facilitate the
commission of the offense. The task facing this Court
in Echols was to interpret what the drafters of Alaskas
Criminal Code meant by the offense. Do these words
refer to the accomplices intent to promote or
facilitate the other persons conduct? Or do these
words refer to the accomplices intent to promote or
facilitate the other persons conduct and ensuing
result? We ultimately adopted the latter
interpretation in Echols concluding that whenever the
elements of an offense include a particular result, a
person can not be convicted as an accomplice to that
offense unless they consciously intended to achieve
that result.31 Our decision in Echols rests on two
foundations.
First, we acknowledged that the drafters of
AS 11.16.110(2) intended to codify Alaskas pre-existing
law on this subject.32 To ascertain that pre-existing
law, we examined two pre-code decisions of the Alaska
Supreme Court: Hensel v. State, 604 P.2d 222 (Alaska
1979), and Tarnef v. State, 512 P.2d 923 (Alaska 1973).
We concluded that these two decisions stood for the
principle that, to establish complicity in a crime
requiring proof of a particular result, the government
must prove that the accomplice intended to further or
achieve the result specified in the underlying criminal
statute. But we misread these two cases.
Hensel is not relevant to the issue presented
in Echols. Instead, Hensel dealt with a different
aspect of complicity: the problem of whether a person
can be held liable as an accomplice if they furnish
money, tools, supplies, or other physical aid to
another person, knowing that this other person intends
to use these things in criminal activity, but without
intent to promote or facilitate that criminal activity.
As already discussed in this opinion, the common-law
courts were divided on this issue, with the majority
holding that knowledge was not enough, and that intent
to promote the criminal activity was required.
In Hensel, the supreme court adopted the
majority common-law rule, holding that knowledge of the
other persons planned criminal activity is not enough
to establish complicity that an accomplice must also
have had the specific criminal intent to bring about
the illegal end.33 But, in context, the supreme court
was only clarifying that the government must prove that
the supplier of aid acted with the intent to promote
the success of the criminal venture. The supreme court
declared that its purpose was to have Alaska adhere to
the generally accepted rule concerning the furnishing
of aid to those who are known to be engaged in criminal
conduct.34
In other words, Hensels language about intent
to bring about [an] illegal end was not addressed to
the issue presented in Echols the issue of whether a
defendant who assists or encourages illegal conduct,
and intends to promote or facilitate that illegal
conduct, can be convicted of a crime based on the
unintended results of that conduct if the State proves
that the defendant acted with the culpable mental state
specified in the statute defining the crime. In fact,
the supreme court said in footnote 48 of Hensel that it
was leaving this issue open:
We need not reach the issue of whether
in some cases a less specific criminal intent
would suffice for example, whether a
defendant who furnished a weapon to aid in a
robbery could be found guilty if the weapon
were used to murder rather than to rob the
intended victim. We also need not decide
whether a defendant who furnishes a weapon
with the intent that it be used for criminal
purposes, but without knowledge as to the
particular crime to be perpetrated, could be
found guilty as an accomplice.
Hensel, 604 P.2d at 234 n.48.
This leaves Tarnef. Tarnef states that [i]t 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.35 In Echols, we
focused on the phrase, intent to bring about the
illegal end. We interpreted this phrase to mean that,
under the common law and the pre-1980 law of Alaska, a
person could not be convicted as an accomplice to a
crime requiring proof of a particular result unless the
person acted with the intent to promote or facilitate
the achievement of that end or result. But, on closer
inspection, this isolated phrase from Tarnef does not
stand for this proposition.
The defendant in Tarnef was accused of complicity in
second-degree arson under Alaskas former criminal code.
This crime was defined as willfully and maliciously
setting fire to a structure. (See former AS 11.20.020,
quoted in Tarnef, 512 P.2d at 927.) That is, the crime
was defined solely in terms of conduct; it did not
require proof of any result. Thus, when the supreme
court required proof of the defendants specific
criminal intent to bring about the illegal end, they
were talking about Tarnefs intent to aid or encourage
someone elses conduct the act of setting fire to a
building.
In fact, another portion of the Tarnef decision
contains a more accurate description of the complicity rule.
This description appears on the next page of the opinion, when
the supreme court announces its holding that Alaskas complicity
statute will be construed to incorporate the common-law
requirement of criminal intent:
It is clear that at common law criminal
intent was a necessary element of liability
as an aider and abettor. [footnote 7]
Although Alaska now treats aiders and
abettors as principals, the common law intent
requirement remains. Accordingly, we hold
that although intent is not specifically
mentioned in the portion of the second degree
arson statute which refers to one who aids,
counsels or procures the burning of a
building, criminal intent is required as a
necessary element of the crime.
Tarnef, 512 P.2d at 929 (footnote 8 omitted).
One of the footnotes that accompanies this text foot
note 7 is crucial to understanding what the supreme court meant
when it declared that Alaska would continue to apply the common
law rule that criminal intent [is] a necessary element of
[accomplice] liability. This footnote is quite short; it reads:
E.g., Peats v. State, 213 Ind. 560, 12 N.E.2d 270, 277
(Ind.1938). But the Alaska Supreme Courts approving citation of
Peats demonstrates that Tarnef does not stand for the rule of law
that we adopted in Echols.
The defendant in Peats was convicted of manslaughter
based on evidence that he either encouraged or perhaps personally
aided a group of other men who committed an unlawful assault on
the victim. The assailants chased the victims truck down the
highway, overtook and passed it, then turned around and raced
back. Approaching the victims truck at 70 miles per hour, the
assailants threw rocks and pieces of concrete at the truck. The
victim lost control of his vehicle and crashed, suffering
injuries that ultimately proved fatal.36
The defendant in Peats argued that even if he
encouraged or assisted the unlawful attack on the victim, he
still could not be convicted of manslaughter because there can be
no aiders or abettors in the crime of involuntary manslaughter.
The defendant asserted that when a person is [unintentionally]
killed in the commission of an unlawful act, only the one
actually perpetrating the [homicide] can be guilty.37 But the
Indiana Supreme Court rejected this view of the law and held that
Peatss purposeful encouragement of, or participation in, the
unlawful assault was sufficient to establish his complicity in
the resulting homicide:
[The assailants shared a] common design or
purpose to commit the unlawful assault and
battery, and the one who [actually
accomplished the killing] had no more purpose
and design of killing than the others when
they entered together upon the common
undertaking, the assault and battery. The
purpose of each was the purpose of all, and
the act of each, in pursuance of the common
design, was the act of all. The one who
actually accomplished the killing intended
only the assault and battery, and those who
assisted in the assault and battery intended
it as much as he. Guilt of involuntary
manslaughter is predicated upon the
intentional doing of the unlawful act, and
not upon intention to kill.
Peats, 12 N.E.2d at 277.
Given the holding in Peats, and given the Alaska
Supreme Courts approving citation of Peats in footnote 7 of
Tarnef, it is clear that we misinterpreted Tarnef (and the pre-
existing law of Alaska) in Echols. Tarnef reiterates the well-
established common law rule that, even though a person may have
assisted or encouraged a criminal act, they can not be held
liable as an accomplice unless they did so with criminal intent.
That is, an accomplice must intend to promote the illegal end if
that phrase is understood to mean the intended unlawful conduct,
such as the unlawful burning in Tarnef or the assault in Peats.
But, as illustrated by the decision in Peats, when the charged
crime rests on proof of unlawful or dangerous conduct followed by
an unintended result (such as injury or death), there is no
common-law requirement that an accomplice subjectively intend to
cause this result.
Thus, the first basis for our decision in Echols our
conclusion that Alaskas pre-code law required proof of an
accomplices subjective intent to promote or facilitate a
particular result is erroneous.
The second basis for our decision in Echols was our
adoption of Professor LaFaves suggestion that complicity statutes
based on Model Penal Code 2.06(3) are intended to prohibit
accomplice liability for any crime involving a particular result
unless the government proves that the accomplice acted
intentionally with respect to that result.
But as we have already discussed, this suggestion is
contradicted by the pertinent Model Penal Code commentary, and it
has been rejected by most courts with Model Penal Code-based
complicity statutes. The standard interpretation of the phrase
intent to promote or facilitate the commission of the offense is
that it requires proof of the accomplices intent to promote or
facilitate another persons conduct that constitutes the actus
reus of the offense. With regard to the results of that conduct,
the government must prove that the accomplice had whatever
culpable mental state is required for the underlying crime.
It is true, as we pointed out in Echols, that our
criminal code contains a provision, AS 11.16.110, based on Model
Penal Code 2.06(3), but it does not contain a provision based on
Model Penal Code 2.06(4) no provision expressly providing that,
when a statute requires proof of a particular result and
specifies an accompanying culpable mental state, the government
must prove that an accomplice acted with that culpable mental
state. In Echols, we took this omission to mean that the
drafters of Alaskas criminal code disagreed with the principle of
Model Penal Code 2.06(4), and that they wanted to require a
higher culpable mental state intentionally whenever a defendant
was prosecuted under a complicity theory.38
But this reasoning rests on the same illogical premise
that we described previously the premise that Model Penal Code
2.06(3) and Model Penal Code 2.06(4) are fundamentally at odds,
each embodying a different rule of accomplice liability. As the
Model Penal Code commentary explains, this is not the case. The
two sections were intended to complement each other: subsection
(3) describes the circumstances in which one person can be held
accountable for another persons conduct, and subsection (4)
explains that, even though two or more people may be accountable
for the conduct constituting an offense, each persons culpable
mental state must be evaluated separately.
Although the drafters of our criminal code did not
explain why they did not codify Model Penal Code 2.06(4), it
does not make sense to interpret their decision as an indication
that they wanted to restrict accomplice liability to instances
where the accomplice acted intentionally with respect to a
result. First, the drafters expressly stated that they intended
AS 11.16.110(2) to codify Alaskas pre-existing law on this
subject, and as we have just explained no such rule is found in
Alaskas pre-code decisions. Second, the Model Penal Code
commentary clearly states that 2.06(3)-(4) were intended to
authorize accomplice-liability convictions for crimes such as
second-degree murder or manslaughter upon proof that (1) the
accomplice intentionally promoted or facilitated another persons
dangerous conduct, (2) an unintended death resulted, and (3) the
accomplice acted with the culpable mental state required for the
underlying crime. If the drafters of our criminal code had
intended to discard this basic principle of the Model Penal Codes
section on accomplice liability, one would expect the drafters to
have flagged this change instead of remaining silent.
It now appears to us more likely that the drafters of
Alaskas code failed to include a provision based on Model Penal
Code 2.06(4) because they considered it superfluous. As
explained above, the drafters of the Model Penal Code rejected
the common-law decisions that accomplices should automatically be
held accountable for any and all objectively foreseeable
consequences of a joint unlawful endeavor. Rather, the Model
Penal Codes primary philosophical position was that any
defendants culpability should be assessed separately, based on
(1) their conduct (either their own personal conduct or the
conduct of another for which they were accountable) and (2) their
personal culpable mental state(s).
Under Model Penal Code 2.06(3) and under AS
11.16.110(2) a person can be held accountable for conduct
performed by another person. But no provision of the Model Penal
Code imposes vicarious liability for the culpable mental state of
another; each persons culpable mental state is evaluated
individually. Thus, the drafters of Alaskas code could conclude
that, even in the absence of a statutory provision expressly
requiring individual assessment of each accomplices culpable
mental state, individual assessment would be the default rule.
This was, in fact, the common-law rule with respect to
the participants in a criminal homicide. Take, for instance, the
situation where two defendants are jointly accountable for a
criminal homicide one because he personally struck the fatal
blow or inflicted the fatal wound, and the other under a theory
of complicity because he encouraged or assisted the homicidal
act. If one of the defendants acted in cold blood (i.e., with
malice aforethought) while the other acted in the heat of
passion, the one who acted with malice would be guilty of murder
and the one who acted in the heat of passion would be guilty only
of manslaughter. This was true regardless of which defendant was
the perpetrator and which the accomplice. See Perkins & Boyce,
pp. 753, 757; LaFave & Scott, 6.7(c), Vol. 2, pp. 144-45.
In conclusion: The Model Penal Code was written to
impose accomplice liability for crimes involving unintended
injury or death if the accomplice intentionally promotes or
facilitates the conduct that produces the injury or death, even
though the accomplice did not intend this result. Among the
states that have complicity statutes based on the Model Penal
Code, most courts have interpreted their statutes this way. The
reasons that we gave in Echols for interpreting AS 11.16.110(2)
differently do not withstand analysis. Accordingly, we now
overrule our decision in Echols. When AS 11.16.110(2) speaks of
a persons intent to promote or facilitate the commission of the
offense, this phrase means that the accomplice must act with the
intent to promote or facilitate the conduct that constitutes the
actus reus of the offense. With respect to offenses that require
proof of a particular result, the government must prove that the
accomplice acted with the culpable mental state that applies to
that result, as specified in the underlying statute.
Thus, Riley could properly be convicted of first-degree
assault under AS 11.41.200(a)(1) either upon proof that he
personally shot a firearm into the crowd or (alternatively) upon
proof that, acting with intent to promote or facilitate Portallas
act of shooting into the crowd, Riley solicited, encouraged, or
assisted Portalla to do so. These are alternative ways of
proving that Riley was accountable for the conduct that inflicted
the injuries. The government was also obliged to prove that
Riley acted with the culpable mental state specified by the first-
degree assault statute. But regardless of whether Riley acted as
a principal or an accomplice, the applicable culpable mental
state remained the same: recklessness as to the possibility that
this conduct would cause serious physical injury.39
Because Rileys jury was instructed in accordance with
Echols, they were asked to decide whether the State met a higher
burden: proof that Riley intended to inflict serious physical
injury. The jurys verdict that Riley acted intentionally with
respect to this result is sufficient to establish Rileys guilt
under the true standard, recklessly. See AS 11.81.610(c): If
recklessly suffices to establish an element, that element also is
established if a person acts intentionally or knowingly.
For these reasons, we affirm Rileys two convictions for
first-degree assault.
Rileys sentence appeal
First-degree assault is a class A felony.40
As a first felony offender, Riley faced a 5-year
presumptive term on each of the two counts of first-
degree assault, with a maximum sentence of 20 years
imprisonment on each count.41 For the two counts of
first-degree assault and the six counts of third-degree
assault, Riley was sentenced to a composite term of 16
years imprisonment with 6 years suspended 10 years to
serve.
Superior Court Judge Niesje J. Steinkruger
found that the State had proved three aggravating
factors under AS 12.55.155(c): (c)(10) that Rileys
conduct was among the most serious within the
definition of first-degree assault; (c)(6) that Rileys
conduct created a risk of injury to three or more
persons; and (c)(9) that Riley knew that the offense
involved more than one victim. Judge Steinkruger also
found that Riley showed no remorse, was unwilling to
accept any blame for his conduct, and lacked insight
into his own behavior. She concluded that the need to
isolate Riley to protect the public was extremely high.
In addition to sentencing Riley to serve 10
years in prison, Judge Steinkruger exercised her
authority under AS 12.55.115 and ordered that Riley not
be eligible for discretionary parole during this 10-
year term. She imposed this parole restriction based
on her finding that Riley was an extremely dangerous
offender who, because of his lack of insight and lack
of remorse, was unlikely to be rehabilitated before the
end of his 10-year term.
Riley contends that his 10-year prison term
is excessive. His primary argument is that he was
penalized for insisting on a trial. By this, Riley
means that his sentence is greater than the sentence
that his co-defendant Portalla will likely receive.
Portalla entered into a plea bargain with the State,
agreeing to plead no contest to a single count of first-
degree assault and further agreeing to testify against
Riley at his trial.
The fact that Portalla may receive a lesser
sentence than Riley does not suggest an unjustified
sentencing disparity. One obvious justification for
the disparate sentences is that Portalla admitted his
participation in the assault when he was first
questioned by the state troopers, he assisted the
troopers in their investigation, and he ultimately
agreed to testify for the State for which he was
allowed to plead no contest to a single count of first-
degree assault.
In his brief to this Court, Riley asserts
that the jury found that Portalla was the one who fired
the shots that wounded the two victims. Riley infers
this from the fact that the jury found him guilty under
a complicity theory. But, as the State points out, the
jurys verdict shows only that the jurors could not
decide, beyond a reasonable doubt, which man fired the
wounding shots leaving them no alternative but to
decide Rileys guilt or innocence under the more
stringent requirements of a complicity theory.
Judge Steinkrugers findings at sentencing
offer another justification for the disparate
sentences. Judge Steinkruger found that Riley, who was
30 years old, was the leader in the criminal conduct.
(Portalla was 18 years old.) Judge Steinkruger further
found that it was Rileys idea to stalk[] a group of
young people who were socializing on a summer evening
by the river.
As this Court noted in Sam v. State,
incidents of unexplained and unprovoked violence may
indicate that an offender is seriously disturbed and
unusually dangerous. For this reason[,] such conduct
may justify the imposition of an exceptionally severe
sentence, even for a first offender. 842 P.2d 596, 603
(Alaska App. 1992).
For these reasons, we conclude that Rileys 10-
year prison term is not clearly mistaken.42
Riley also contends that Judge Steinkruger
did not actually exercise her authority under AS
12.55.115 to restrict his parole eligibility. He
asserts that Judge Steinkruger merely declared that
both of his first-degree assault sentences were
presumptive sentences. Riley suggests that the judge
may have thought that this was sufficient to restrict
his parole eligibility for the entire 10-year term, but
she was mistaken.
The record does not support Rileys argument.
Although Judge Steinkruger never expressly referred to
AS 12.55.115, her remarks concerning parole eligibility
clearly show that she was exercising her statutory
authority to deny Riley discretionary parole during his
10-year prison term:
The Court: [I find] that the defendant
is an extremely dangerous offender, shooting
into an unarmed crowd. ... [B]ased upon the
defendants attitude, ... it [is] unlikely
that rehabilitation will occur in less than
the full time to serve, as the defendant is
without remorse and significant ... insight,
and [because he] continues to blame others.
I find [his] level of dangerousness to be
such that the public needs protection [from
him] for the entire term of the sentence, and
thus parole eligibility is restricted for the
10 years.
Finally, Riley challenges Judge
Steinkrugers decision to order Riley to pay
restitution to one of the shooting victims
for the cost of an airplane ticket home. At
the time of the assault, this victim was a
member of the military, stationed in
Fairbanks. Because of the shooting, and
because of resulting post-traumatic stress,
he was unable to continue to perform his
duties. The Army granted him compassionate
leave and allowed him to return home to his
parents residence in Ohio to recover.
Alaska Statute 12.55.045
specifically authorizes restitution for
counseling, medical, or shelter services
provided to the victim or other person
injured by the offense. Riley contends that
reimbursement for a plane ticket home is
beyond the scope of this statutory
authorization.
However, in Reece v. State, 881
P.2d 1135 (Alaska App. 1994), this Court
upheld an award of restitution for partial
moving expenses incurred by the mother of an
eight-year-old sexual abuse victim. We
reasoned that the move was prompted by the
sexual abuse for which [the defendant] was
convicted and that the location [the mother]
chose for a new residence was reasonable.
Id. at 1138.
The record contains sufficient
justification for the victims move to his
parents residence to recuperate from his
injuries. Judge Steinkruger could reasonably
conclude that this expense was attributable
to Rileys crime and was reimbursable under
the statute.
Conclusion
For the reasons explained here, our decision
in Echols is OVERRULED, and Rileys conviction and
sentence are AFFIRMED.
_______________________________
1 AS 11.41.200(a)(1) and AS 11.41.220(a)(1)(A),
respectively.
2 Throughout this opinion, we will use the term principal to
refer to a person who perpetrates a crime by their own conduct,
while the term accomplice will refer to someone who, under our
complicity statute (AS 11.16.110) is legally accountable for the
conduct of another. Our use of these terms differs from the
common-law terminology of principal and accessory. At common
law, both Riley and Portalla would be principals: whoever fired
the wounding shot would be a principal in the first degree, while
his cohort would be a principal in the second degree a term that
referred to any person who was present at the scene of a crime
(either actually or constructively) and solicited, encouraged, or
assisted the commission of the crime. See Rollin M. Perkins &
Ronald N. Boyce, Criminal Law (3rd ed. 1982), pp. 738-744; Wayne
R. LaFave & Austin W. Scott, Jr., Criminal Law (1986), 6.6(b),
Vol. 2, pp. 128-29.
3 Echols, 818 P.2d at 692.
4 Id. at 695.
5 See, e.g., Norris v. State, 857 P.2d 349, 355 (Alaska
App. 1993); OBrannon v. State, 812 P.2d 222, 229
(Alaska App. 1991).
6 Echols, 818 P.2d at 694-95.
7 Rogers, supra at 1369.
8 See Joshua Dressler, Understanding Criminal Law (1995),
pp. 442-43 n.81.
9 But compare Washington Statute 9A.08.020(3)(a), a
complicity statute that rejects the intent requirement
of the Model Penal Code and instead imposes accomplice
liability if a person solicits, encourages, or aids the
planning or commission of a crime [w]ith knowledge that
[their conduct] will promote or facilitate the
commission of the crime.
10 Perkins & Boyce, pp. 739-740.
11 Id. at 740.
12 LaFave & Scott, 6.7(e), Vol. 2, p. 149.
13 Overruled on other grounds in State v. Anderson, 937
S.W.2d 851 (Tenn. 1996).
14Bolden, 375 N.E.2d at 901, 904.
15Id. at 903.
16Id.
17Id.
18Id. at 904.
19 American Law Institute, Model Penal Code and
Commentaries (Official Draft and Revised Comments) (1985),
explanatory note to 2.06, p. 297.
20 Model Penal Code, Comment to 2.06, General Purpose, p.
298.
21 Model Penal Code, Comment to 2.06(3), p. 310 (emphasis
added).
22 Id., pp. 310-11 (emphasis added).
23 Id., pp. 311-13.
24Alabama Statute 13A-2-23; Arizona Statute 13-301;
Arkansas Code 5-2-403; Colorado Statute 18-1-603;
Delaware Code, Title 11, 271; Hawaii Statute 702-222;
Illinois Code, Chapter 720, Art. 5, 5-2; Kentucky
Statute 502.020; Maine Statutes, Title 17-A, 57;
Montana Code 45-2-302; New Hampshire Statute
626:8,III; New Jersey Statute 2C:2-6; Oregon Statute
161.155; Pennsylvania Statutes, Title 18, 306; South
Dakota Codified Law 22-3-3; Texas Penal Code 7.02.
25Simmons, 649 So.2d at 1283.
26Id. at 1283.
27Simmons, 649 So.2d at 1281.
28 Taylor, 557 N.E.2d at 922-23.
29 Hooks, 416 A.2d at 197 (emphasis added).
30 Id.
31 Echols, 818 P.2d at 694-95.
32 See Alaska Criminal Code Revision, Tentative Draft,
Part 2 (1977), p. 31.
33 Hensel, 604 P.2d at 234.
34 Id.
35Tarnef, 512 P.2d at 928 (quoted in Echols, 818 P.2d at
692).
36 Peats, 12 N.E.2d at 273-75.
37 Id. at 277.
38 Echols, 818 P.2d at 694.
39 See AS 11.41.200(a)(1), which defines the crime as
recklessly caus[ing] serious physical injury to another by means
of a dangerous instrument.
40 AS 11.41.200(b).
41 AS 12.55.125(c).
42 See McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974) (an appellate court is to affirm a sentencing decision
unless the decision is clearly mistaken).
