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Answers to the You Decide Boxes

CHAPTER TWO

You Decide 2.1: State v. Stanko, 974 P.2D 1132 (MONT. 1998), Opinion by: Trieweiler, J.

Facts

Kenneth Breidenbach is a member of the Montana Highway Patrol who, at the time of trial and the time of the incident that formed the basis for Stanko’s arrest, was stationed in Jordan, Montana. On March 10, 1996, he was on duty patrolling Montana State Highway 24 and proceeding south from Fort Peck toward Flowing Wells in “extremely light” traffic at about 8 a.m. on a Sunday morning when he observed another vehicle approaching him from behind.

He stopped or slowed, made a right-hand turn, and proceeded west on Highway 200. About one-half mile from that intersection, in the first passing zone, the vehicle that had been approaching him from behind passed him. He caught up to the vehicle and trailed the vehicle at a constant speed for a distance of approximately eight miles while observing what he referred to as the two- or three-second rule. . . . He testified that he clocked the vehicle ahead of him at a steady 85 miles per hour during the time that he followed it. At that speed, the distance between the two vehicles was from 249 to 374 feet. . . . Officer Breidenbach signaled him to pull over and issued him a ticket for violating Section 61–8-303(1), Montana Code Annotated (MCA). The basis for the ticket was the fact that Stanko had been operating his vehicle at a speed of 85 miles per hour at a location where Officer Breidenbach concluded it was unsafe to do so.

The officer testified that the road at that location was narrow, had no shoulders, and was broken up by an occasional frost heave. He also testified that the portion of the road over which he clocked Stanko included curves and hills that obscured vision of the roadway ahead. However, he acknowledged that at a distance of from 249 to 374 feet behind Stanko, he had never lost sight of Stanko’s vehicle. The roadway itself was bare and dry, there were no adverse weather conditions, and the incident occurred during daylight hours. Officer Breidenbach apparently did not inspect the brakes on Stanko’s vehicle or make any observation regarding its weight. The only inspection he conducted was of the tires, which appeared to be brand new. He also observed that it was a 1996 Camaro, which was a sports car, and that it had a suspension system designed so that the vehicle could be operated at high speeds. He also testified that while he and Stanko were on Highway 24 there were no other vehicles that he observed, that during the time that he clocked Stanko . . . they approached no other vehicles going in their direction, and that he observed a couple of vehicles approach them in the opposite direction during that eight-mile stretch of highway.

Although Officer Breidenbach expressed the opinion that 85 miles per hour was unreasonable at that location, he gave no opinion about what would have been a reasonable speed, nor did he identify anything about Stanko’s operation of his vehicle, other than the speed at which he was traveling, which he considered to be unsafe. Stanko testified that on the date he was arrested he was driving a 1996 Chevrolet Camaro that he had just purchased one to two months earlier and that had been driven fewer than 10,000 miles. He stated that the brakes, tires, and steering were all in perfect operating condition, the highway conditions were perfect, and he felt that he was operating his vehicle in a safe manner. He conceded that after passing Officer Breidenbach’s vehicle, he drove at a speed of 85 miles per hour but testified that because he was aware of the officer’s presence he was extra careful about the manner in which he operated his vehicle. He felt that he would have had no problem avoiding any collision at the speed that he was traveling. Stanko testified that he was fifty years old at the time of trial, drives an average of 50,000 miles a year, and has never had an accident.

Issue

Is Section 61–8-303(1), MCA, so vague that it violates the Due Process Clause found at article 2 section 17 of the Montana Constitution? . . . Stanko contends that Section 61–8-303(1), MCA, is unconstitutionally vague because it fails to give a motorist of ordinary intelligence fair notice of the speed at which he or she violates the law, and because it delegates an important public policy matter, such as the appropriate speed on Montana’s highways, to policemen, judges, and juries for resolution on a case-by-case basis. Section 61–8-303(1), MCA, provides as follows:

A person operating or driving a vehicle of any character on a public highway of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account the amount and character of traffic, condition of brakes, weight of vehicle, grade and width of highway, condition of surface, and freedom of obstruction to the view ahead. The person operating or driving the vehicle shall drive the vehicle so as not to unduly or unreasonably endanger the life, limb, property, or other rights of a person entitled to the use of the street or highway.

The question is whether a statute that regulates speed in the terms set forth above gave Stanko reasonable notice of the speed at which his conduct would violate the law.

Reasoning

In Montana, we have established the following test for whether a statute is void on its face for vagueness: “A statute is void on its face if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” . . . No person should be required to speculate as to whether his contemplated course of action may be subject to criminal penalties. We conclude that, as a speed limit, Section 61–8-303(1), MCA, does not meet these requirements of the Due Process Clause of article 2 section 17 of the Montana Constitution, nor does it further the values that the void-for-vagueness doctrine is intended to protect.

For example, while it was the opinion of Officer Breidenbach that 85 miles per hour was an unreasonable speed at the time and place where Stanko was arrested, he offered no opinion regarding what a reasonable speed at that time and place would have been. Neither was the attorney general, the chief law enforcement officer for the state, able to specify a speed that would have been reasonable for Stanko at the time and place where he was arrested. . . .

The difficulty that Section 61–8-303(1), MCA, presents as a statute to regulate speed on Montana’s highways, especially as it concerns those interests that the void-for-vagueness doctrine is intended to protect, was further evident from the following discussion with the attorney general during the argument of this case:

Q. Well how many highway patrol men and women are there in the State of Montana?

A. There are 212 authorized members of the patrol. Of that number, about 190 are officers and on the road.

Q. And I understand there are no specific guidelines provided to them to enable them to know at what point, exact point, a person’s speed is a violation of the basic rule?

A. That’s correct, your honor, because that’s not what the statute requires. We do not have a numerical limit. We have a basic rule statute that requires the officer to take into account whether or not the driver is driving in a careful and prudent manner, using the speed.

Q. And it’s up to each of their individual judgments to enforce the law?

A. It is, your honor, using their judgment applying the standard set forth in the statute. . . 

It is evident from the testimony in this case and the arguments to the court that the average motorist in Montana would have no idea of the speed at which he or she could operate his or her motor vehicle on this state’s highways without violating Montana’s “basic rule” based simply on the speed at which he or she is traveling. Furthermore, the basic rule not only permits, but requires the kind of arbitrary and discriminatory enforcement that the Due Process Clause in general, and the void-for-vagueness doctrine in particular, are designed to prevent. It impermissibly delegates the basic public policy of how fast is too fast on Montana’s highways to “policemen, judges, and juries for resolution on an ad hoc and subjective basis.”

For example, the statute requires that a motor vehicle operator and Montana’s law enforcement personnel take into consideration the amount of traffic at the location in question, the condition of the vehicle’s brakes, the vehicle’s weight, the grade and width of the highway, the condition of its surface, and its freedom from obstruction to the view ahead. However, there is no specification of how these various factors are to be weighted, or whether priority should be given to some factors as opposed to others. This case is a good example of the problems inherent in trying to consistently apply all of these variables in a way that gives motorists notice of the speed at which the operation of their vehicles becomes a violation of the law..

Holding

We do not, however, mean to imply that motorists who lose control of their vehicles or endanger the life, limb, or property of others by the operation of their vehicles on a street or highway cannot be punished for that conduct pursuant to other statutes. . . . We simply hold that Montanans cannot be charged, prosecuted, and punished for speed alone without notifying them of the speed at which their conduct violates the law. . . . The judgment of the district court is reversed. 

Dissenting, Turnage, J.

This important traffic regulation has remained unchanged as the law of Montana . . . since 1955. . . . Apparently for the past forty-three years, other citizens driving upon our highways had no problem in understanding this statutory provision. Section 61–8-303(1), MCA, is not vague and most particularly is not unconstitutional as a denial of due process. . . .

Dissenting, Regnier, J.

The arresting officer described in detail the roadway where Stanko was operating his vehicle at 85 miles per hour. The roadway was very narrow with no shoulders. There were frost heaves on the road that caused the officer’s vehicle to bounce. The highway had steep hills, sharp curves, and multiple no-passing zones. There were numerous ranch and field access roads in the area, which ranchers use for bringing hay to their cattle. The officer testified that at 85 miles per hour, there was no way for Stanko to stop in the event there had been an obstruction on the road beyond the crest of a hill. In the officer’s judgment, driving a vehicle at the speed of 85 miles per hour on the stretch of road in question posed a danger to the rest of the driving public. In my view, Stanko’s speed on the roadway where he was arrested clearly falls within the behavior proscribed by the statute. . . .

You Decide 2.2: United States v. Biocic, 928 F.2d 112 (4th Cir. 1991).

Jeanine Biocic appeals her conviction for violating a United States Fish and Wildlife regulation, 50 C.F.R. Sec. 27.83, by going partially nude in a national wildlife refuge. She contends on various grounds that the regulation is unconstitutional as applied to her. We affirm the conviction. On a summer day in June of 1989, Ms. Biocic, an adult female, was walking on the beach on the Chincoteague National Wildlife Refuge in Accomack County, Virginia, with a male companion. "To get some extra sun," as she put it, she removed the top of her two-piece bathing suit, fully exposing her breasts. She was observed in this state of partial nudity by an officer of the federal Fish and Wildlife Service who issued her a summons charging a violation of 50 C.F.R. Sec. 27.83, which provides that

[a]ny act of indecency or disorderly conduct as defined by State or local laws is prohibited on any national wildlife refuge.

A magistrate judge convicted Ms. Biocic of violating this regulation after a trial in which the facts above summarized were established without essential dispute. Specifically, the magistrate judge concluded that Ms. Biocic's conduct constituted an "act of indecency" within the meaning of Sec. 9.3 of the Accomack County Code. In relevant part, that "anti-nudity" ordinance, following a Preamble which recites that the enacting body "deems it necessary to prohibit certain conduct ... in order to secure and promote the health, safety and general welfare of the [county's] inhabitants," makes it

unlawful for any person to knowingly, voluntarily, and intentionally appear ... in a place open to the public or open to public view, in a state of nudity.

"State of nudity" is then defined in a definitional section as

A state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering on any portion thereof below the top of the nipple.

"Nudity" as thus defined is expressly excluded from the ordinance's reach when practiced in dramatic productions and other forms of legitimate artistic expression.1

The magistrate judge concluded that Ms. Biocic's exposure of her breasts in a way which fell within the County Code's express prohibition of this form of nudity constituted an "act of indecency" as defined by local law, hence violated the federal regulation. He fined her $25.00.

This conviction was affirmed on appeal to the United States District Court.

Ms. Biocic's equal protection claim is equally simple: the ordinance (hence, presumably, the federal regulation that assimilates its "definition" of indecency) prohibits the public exposure of female breasts but not male breasts; this constitutes a gender-based distinction that is not substantially related to an important governmental interest, hence fails the appropriate intermediate level of scrutiny in equal protection analysis. We assume, without deciding, as did the district court, that a distinction based upon anatomical differences between male and female is gender-based for equal protection analysis purposes. But we then agree with the district court that the distinction here is one that is substantially related to an important governmental interest, hence does not deny equal protection. The important government interest is the widely recognized one of protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens' anatomies that traditionally in this society have been regarded as erogenous zones. These still include (whether justifiably or not in the eyes of all) the female, but not the male, breast.

That does it, for the limited purpose of our legal inquiry. As Justice Stewart put it:

[W]e have recognized that in certain narrow circumstances men and women are not similarly situated; in these circumstances a gender classification based on clear differences between the sexes is not invidious, and a legislative classification realistically based upon those differences is not unconstitutional.

You Decide 2.3: In Re Ryan, 123 Cal.Rptr.2d 193 (Cal.App. 2002).

In applying Section 422, courts must be cautious to ensure that the statutory standard is not expanded beyond that which is constitutionally permissible. The statutory definition of the crime proscribed by section 422 is not subject to a simple checklist approach to determining the sufficiency of the evidence. Rather, it is necessary first to determine the facts and then balance the facts against each other to determine whether, viewed in their totality, the circumstances are sufficient to meet the requirement that the communication "convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat." This presents a mixed question of fact and law. We shall conclude that the evidence fails to establish the minor intended to convey a threat to Officer MacPhail and that, under the circumstances in which it was presented, the painting did not convey a gravity of purpose and immediate prospect of the execution of a crime that would result in death or great bodily injury to MacPhail. Consequently, we need not address the minor's arguments that the evidence is insufficient to establish other elements of section 422.

A criminal threat must be conveyed "verbally, in writing, or by means of an electronic communication device." The word "writing" is sufficiently broad to include any physical rendering of a person's thoughts, ideas, or creations. Indeed, communication through pictorial renderings predates civilization itself. In this case, however, we need not determine whether a painting alone can constitute a "writing" within the meaning of section 422. The minor's painting included the letters "CPD," for Chico Police Department, and the badge number "67," for Officer MacPhail, which were integral to the painting and constituted the specific means used by the minor to identify the subject of the painting as MacPhail. Therefore, even if we were to conclude that the word "writing" in section 422 requires the depiction of letters or numbers, the minor's painting would satisfy this criterion.

It has been said that a picture is worth a thousand words. But as the expression of an idea, a painting may make "extensive use of symbolism, caricature, exaggeration, extravagance, fancy, and make-believe." A criminal threat, on the other hand, is a specific and narrow class of communication. It is the expression of an intent to inflict serious evil upon another person. As an expression of intent, a painting--even a graphically violent painting--is necessarily ambiguous. Therefore, standing alone, the minor's painting did not constitute a criminal threat. Of course, ambiguity may be resolved by surrounding circumstances. However, the circumstances in this case do not support a finding that the minor's painting meets the requirements of section 422.

After completing the painting, the minor took it to class and turned it in for credit. This would be a rather unconventional and odd means of communicating a threat. Ordinarily, a person wishing to threaten another would not do so by communicating with someone in a position of authority over the person making the threat. This is not invariably so, but usually threats that are made to, or in the presence of, an authority figure are made when the threatener is in a rage, is under the influence of alcohol or drugs, or is attempting to serve an immediate purpose, such as dissuading a witness. The incident that sparked the minor's anger occurred over a month before he turned in the painting. While it is apparent that he remained angry, nothing suggests he remained in a rage for the entire month.

Even though the juvenile court found that the minor "intended to take [the painting] to school for a grade," the court noted he "could" have had another purpose. But the mere possibility that the minor had a dual intent in creating the painting and taking it to class is insufficient to sustain the finding that he committed a criminal offense.

It is true the minor conceded it was reasonable to expect that Officer MacPhail eventually would see the minor's painting. However, this concession was made at the urging of an assistant principal near the end of a 40-minute interview in which the minor stated that he did not think MacPhail would ever see the painting. In light of all the evidence, the concession is insufficient to support the juvenile court's finding that the minor intended MacPhail to see the painting. After all, he did not display it to MacPhail or put it in a location where he knew she would see it. Nor did he communicate with MacPhail in any manner to advise her that she should see the painting. Even MacPhail acknowledged that the students would not expect her to come into the art classroom. In fact, MacPhail did not learn of the painting until an assistant principal called and then showed it to her.

As we have noted, to establish a criminal threat, it must be shown that, at the time the minor acted, he had the specific intent that Officer MacPhail would be shown the painting. Viewed in a light most favorable to the judgment, the totality of the circumstances establishes that the minor could have, and perhaps even should have, foreseen the possibility that MacPhail would learn of and observe the painting. But the evidence is not sufficient to establish that, at the time he acted, the minor harbored the specific intent that the painting would be displayed to MacPhail.

In any event, under the circumstances, as a perceived threat the painting was not so unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and an immediate prospect of the execution of a crime against Officer MacPhail that would result in death or great bodily injury. It was not accompanied by any words, on the painting or otherwise, such as "this will be you," "I do have a gun, you know," or "watch out." The minor did not direct any gestures or facial expressions to Officer MacPhail in association with the painting. In fact, the minor had no contact at all with MacPhail for the month that elapsed between the time she gave him the citation and the day he turned

The painting certainly reflects anger on the minor's part, but without more it does not appear to be anything other than pictorial ranting. That this is so is reflected by the fact that the actions of school authorities and the police show they did not perceive the painting to be an immediate threat. When the minor's art teacher saw the painting, believed the hooded figure depicted the minor, and found it "disturbing" and "scary," she did not call security or the police. She simply took it to an assistant principal's office with a note suggesting that he look at it. Indeed, she waited until the next day to speak with the minor about the painting. The teacher's failure to take any other action demonstrates that she did not view the painting as an immediate threat to any officer, let alone Officer MacPhail. Likewise, when an assistant principal saw the painting, he did not seek to have the minor arrested. Even MacPhail did not have the minor arrested when she saw the painting and was shocked by its graphic nature. She simply asked another officer to investigate the matter. When that officer saw the painting and was "disturbed" by it, in part because there had been several shootings on high school grounds, he, too, did not immediately arrest the minor or take any other steps to secure MacPhail's safety.

The failure of school authorities, the victim, and the police to take immediate action against the minor illustrates that the painting did not convey to them such an unequivocal, unconditional, immediate, and specific threat to commit a crime that would result in death or great bodily injury, with a gravity of purpose and immediate prospect of executing such a threat.

We certainly find no fault with the school authorities and the police treating the matter seriously. The painting was a graphic, if mythical, depiction of the brutal murder of Officer MacPhail. Without question, it was intemperate and demonstrated extremely poor judgment. But, the criminal law does not, and can not, implement a zero-tolerance policy concerning the expressive depiction of violence. In sum, the painting was ambiguous as the threat of an intent to commit murder. And the surrounding circumstances were not sufficient to convey a gravity of purpose and immediate prospect of execution of such a threat, or even to demonstrate that the minor intended to convey any threat to Officer MacPhail. Hence, the evidence did not establish that the painting constituted a criminal threat in violation of section 422.

You Decide 2.3: George T. v. California, 93 P.3d 1007 (Cal. 2004)

Issue

We consider in this case whether a high school student made a criminal threat by giving two classmates a poem labeled “Dark Poetry,” which read in part,

I am Dark, Destructive, & Dangerous. I slap on my face of happiness but inside I am evil!! For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I’m BACK!!

Facts

Fifteen-year-old George T. (minor) had been a student at Santa Teresa High School in Santa Clara County for approximately two weeks when on Friday, March 16, 2001, toward the end of his honors English class, he approached fellow student Mary S. and asked her, “Is there a poetry class here?” Minor then handed Mary three sheets of paper and told her, “Read these.” Mary did so. The first sheet of paper contained a note stating, “These poems describe me and my feelings. Tell me if they describe you and your feelings.” The two other sheets of paper contained poems. Mary read only one of the poems, which was labeled “Dark Poetry” and entitled “Faces”:

Who are these faces around me? Where did they come from? They would probably become the next doctors or loirs [sic] or something. All really intelligent and ahead in their game. I wish I had a choice on what I want to be like they do. All so happy and vagrant. Each original in their own way. They make me want to puke. For I am Dark, Destructive, & Dangerous. I slap on my face of happiness but inside I am evil!! For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I’m BACK!! by: Julius AKA Angel

Minor had a “straight face,” not “show[ing] any emotion, neither happy or sad or angry or upset,” when he handed the poems to Mary. Upon reading the “Faces” poem, Mary became frightened, handed the poems back to minor, and immediately left the campus in fear. After she informed her parents about the poem, her father called the school, but it was closed. Mary testified she did not know minor well, but they were on “friendly terms.” When asked why she felt minor gave her the poem to read, she responded, “I thought maybe because the first day he came into our class, I approached him because that’s the right thing to do” and because she continued to be nice to him.

After Mary handed the poems back to minor, minor approached Erin S. and Natalie P., students minor had met during his two weeks at Santa Teresa High School. Erin had been introduced to minor a week prior and had subsequently spoken with him on only three or four occasions, whereas Natalie considered herself minor’s friend and had come to know him well during their long afterschool conversations, which generally lasted from an hour to an hour and a half and included discussions of poetry. Minor handed Erin a “folded up” piece of paper and asked her to read it. He also handed a similarly folded piece of paper to Natalie, who was standing with Erin. Because Erin was late for class, she only pretended to read the poem to be polite but did not actually read it. She placed the unread poem in the pocket of her jacket.

The next day, Saturday, Mary e-mailed her English teacher William Rasmussen to report her encounter with minor. A substitute teacher had been teaching the class on the day that Mary received the note. She wrote,

I’m sorry to bother you over the weekend, but I don’t think this should wait until Monday. During 6th period on Friday, 3/16, the guy in our class called Julius (actually his name is Theodore?) gave me two poems to read. He explained to me that these poems “described him and his feelings,” and asked if I “felt the same way.” I was surprised to find that the poems were about how he is “nice on the outside,” and how he’s “going to be the next person to bring a gun to school and kill random people.” I told him to bring the poems to Room 315 to Ms. Gonzalez because [she] is in charge of poetry club. He said he would but I don’t know for sure if he did.

Mary remained in fear throughout the weekend, because she understood the poem to be personally threatening to her, as a student. Asked why she felt the poem was a threat, Mary responded,

It’s obvious he thought of himself as a dark, destructive, and dangerous person. And if he was willing to admit that about himself and then also state that he could be the next person to bring guns and kill students, then I’d say that he was threatening.

She understood the term “dark poetry” to mean “angry threats; any thoughts that aren’t positive.” Rasmussen called Mary on Sunday regarding her e-mail. Mary sounded very shaken during the conversation, and based on this and on what she stated about the contents of the poem, Rasmussen contacted the school principal and the police. He read “Faces” for the first time during the jurisdictional hearing and, upon reading it, felt personally threatened by it, because, according to Rasmussen, “He’s saying he’s going to come randomly shoot.” His understanding of “dark poetry” was that it entailed “the concept of death and causing and inflicting a major bodily pain and suffering. . . . There is something foreboding about it.”

On Sunday, March 18, 2001, officers from the San Jose Police Department went to minor’s uncle’s house, where minor and his father were residing. An officer asked minor, who opened the door when the officers arrived, whether there were any guns in the house. Minor “nodded.” Minor’s uncle was surprised that minor was aware of his guns, and handed the officers a .38-caliber handgun and a rifle. When asked about the poems disseminated at school, minor handed an officer a piece of paper he took from his pocket. The paper contained a poem entitled, “Faces in My Head,” which read as follows:

Look at all these faces around me. They look so vacant. They have their whole lives ahead of them. They have their own individuality. Those kind of people make me wanna puke. For I am a slave to very evil masters. I have no future that I choose for myself. I feel as if I am going to go crazy. Probably I would be the next high school killer. A little song keeps playing in my head. My daddy is worth a dollar not even 100 cents. As I look at these faces around me I wonder why r [sic] they so happy. What do they have that I don’t. Am I the only one with the messed up mind. Then I realize, I’m cursed!!

As with the poem entitled “Faces,” this poem was labeled “dark poetry,” but it was not shown or given to anyone at school. Minor had drafted “Faces in My Head” that morning in an attempt to capture what he had written in “Faces,” because he wanted a copy for his poetry collection. Minor was taken into custody.

Police officers went to the school the following Monday to investigate the dissemination of the poem. Erin was summoned to the vice-principal’s office and asked whether minor had given her any notes. She responded in the affirmative, realized that the poem was still in the pocket of her jacket, and retrieved it. The paper contained a poem entitled “Faces,” which was the same poem given to Mary. Upon reading the poem for the first time in the vice-principal’s office, Erin became terrified and broke down in tears, finding the poem to be a personal threat to her life. She testified that she was not in the poetry club and had no interest in the subject.

Natalie, who testified on behalf of minor, recalled that minor said, “Read this” as he handed her and Erin the pieces of paper. The folded-up sheet of paper Natalie received contained a poem entitled, “Who Am I.” When a police officer went to Natalie’s home to inquire about the poem minor had given her on Friday, Natalie was not completely cooperative and truthful, telling the officer that the poem was about water and dolphins and that she believed it was a love poem. The police retrieved the poem from Natalie’s trash can and although it was torn, some of it could still be deciphered:

. . . I created? . . . cause it really . . . feel as if . . . stolen from . . . of peace . . . Taken to a place that you hate. Your locked up and when your let out of your cage it is to perform. Not able to be yourself and always hiding & thinking would people like me if I behaved differently? by Julius AKA Angel.

Natalie did not feel threatened by the poem; rather it made her “feel sad,” because “it was kind of lonely.” She testified that “dark poetry is . . . relevant to like pure emotions, like sadness, loneliness, hate or just like pure emotions. Sometimes it tells a story, like a dark story.” Based on her extended conversations with minor, Natalie found him to be “mild and calm and very serene” and did not consider him to be violent.

Minor testified the poem “Faces” was not intended to be a threat, and, because Erin and Natalie were his friends, he did not think they would have taken his poems as such. He thought of poetry as art and stated that he was very much interested in the subject, particularly as a medium to describe “emotions instead of acting them out.” He wrote “Faces” during his honors English class on the day he showed it to Mary and Erin. Minor was having a bad day as a consequence of having forgotten to ask his parents for lunch money and having to forgo lunch that day, and because he was unable to locate something in his backpack. He had many thoughts going through his head, so he decided to write them down as a way of getting them out. The poem “Who Am I,” which was given to Natalie, was written the same day as “Faces,” but was written during the lunch period. Neither poem was intended to be a threat. Instead they were “just creativity.”

Minor and his friends frequently joked about the school shootings at Columbine High School in Colorado (where, in 1999, two students killed twelve fellow students and one faculty member). They would jokingly say, “I’m going to be the next Columbine kid.” Minor testified that Natalie and Erin had been present when he and some of his friends had joked about Columbine, with someone stating that “I’ll probably be the next Columbine killer,” and indicating who would be killed and who would be spared. Given this history, minor believed Natalie and Erin would understand the poems as jokes.

The poems were labeled “dark poetry” to inform readers that they were exactly that, and minor testified,

If anybody was supposed to read this poem, or let’s say if my mom ever found my poem or something of that nature, I would like them to know that it was dark poetry. Dark poetry is usually just an expression. It’s creativity. It is not like you’re actually going to do something like that, basically.

Asked why he wrote, “for I can be the next kid to bring guns to school and kill students,” minor responded,

The San Diego killing [on March 5, 2001, a student at Santana High School shot and killed two students and wounded thirteen others] was about right around this time. So since I put the three Ds—dark, destructive, and dangerous—and since I said—”I am evil,” and since I was talking about people around me—faces—how I said, like, how they would make me want to—did I say that?—well, even if I didn’t—yeah, I did say that. Okay. So, um, I said from all these things, it sounds like, for I can be the next Columbine kid, basically. So why not add that in? And so, “Parents, watch your children, because I’m back,” um, I just wanted to—kind of like a dangerous ending, like a—um, just like ending a poem that would kind of get you, like,—like, whoa, that’s really something.

Minor stated that he did not know Mary and did not give her any poems. However, he was unable to explain how Mary was able to recount the contents of the “Faces” poem.

On cross-examination, minor conceded that he had had difficulties in his two previous schools, including being disciplined for urinating on a wall at his first school and had been asked to leave his second school for plagiarizing from the Internet. He explained that the urination incident was caused by a doctor-verified bladder problem. He denied having any ill will toward the school district, but he conceded when pressed by the prosecutor that he felt the schools “had it in for me.”

An amended petition under Welfare and Institutions Code section 602 was filed against minor, alleging minor made three criminal threats in violation of Penal Code section 422. The victims of the alleged threats were Mary (count 1), Erin (count 3), and Rasmussen (count 2).

Following a contested jurisdictional hearing, the juvenile court found true the allegations with respect to Mary and Erin but dismissed the allegation with respect to Rasmussen. At the hearing, the court adjudicated minor a ward of the court and ordered a 100-day commitment in juvenile hall. Minor appealed, challenging the sufficiency of the evidence to support the juvenile court’s finding that he made criminal threats. Over a dissent, the court of appeal affirmed the juvenile court in all respects with the exception of remanding the matter for the sole purpose of having that court declare the offenses to be either felonies or misdemeanors. We granted review and now reverse.

Reasoning

We made clear that not all threats are criminal and enumerated the elements necessary to prove the offense of making criminal threats under section 422. The prosecution must prove

(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,” (2) that the defendant made the threat “with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,” (3) that the threat—which may be “made verbally, in writing, or by means of an electronic communication device”—was “on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,” (4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family’s safety,” and (5) that the threatened person’s fear was “reasonabl[e]” under the circumstances.

Minor challenges the juvenile court’s findings that he made criminal threats in violation of section 422 and contends that his First Amendment rights were infringed by the court’s conclusion that his poem was a criminal threat.

In cases raising First Amendment issues, [it has] repeatedly held that an appellate court has an obligation to “make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.” The current version of section 422 was drafted with the mandates of the First Amendment in mind, incorporating language from a federal appellate court true-threat decision:

. . . to describe and limit the type of threat covered by the statute. Independent review is particularly important in the threat’s context, because it is a type of speech that is subject to categorical exclusion from First Amendment protection, similar to obscenity, fighting words, and incitement of imminent lawless action. “What is a threat must be distinguished from what is constitutionally protected speech.”

As discussed above, this court enumerated five elements the prosecution must prove in order to meet its burden of proving that a criminal threat was uttered. Minor challenges the findings with respect to two of the five elements, contending that the poem “was [not] ‘on its face and under the circumstances in which it [was disseminated] so unequivocal, unconditional, immediate, and specific as to convey to [Mary and Erin] a gravity of purpose and an immediate prospect of execution of the threat’” and that the facts fail to establish he harbored the specific intent to threaten Mary and Erin.

With respect to the requirement that a threat be “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat,” we explained that the word “so” in Section 422 meant that “‘unequivocality,’ ‘unconditionality,’ ‘immediacy’ and ‘specificity’ are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances. . . . The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim.” A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication’s meaning.

With the above considerations in mind, we examine the poem at issue—”Faces.” What is readily apparent is that much of the poem plainly does not constitute a threat. “Faces” begins by describing the protagonist’s feelings about the “faces” that surround him:

Where did they come from? They would probably become the next doctors or loirs [sic] or something. All really intelligent and ahead in their game. I wish I had a choice on what I want to be like they do. All so happy and vagrant. Each original in their own way. They make me want to puke.

These lines convey the protagonist’s feelings about the students around him and describe his envy over how happy and intelligent they appear to be, with opportunities he does not have. There is no doubt this portion of the poem fails to convey a criminal threat, as no violent conduct whatsoever is expressed or intimated. Neither do the next two lines of the poem convey a threat: “For I am Dark, Destructive, & Dangerous. I slap on my face of happiness but inside I am evil!!” These lines amount to an introspective description of the protagonist, disclosing that he is “destructive,” “dangerous,” and “evil.” But again, such divulgence threatens no action.

Only the final two lines of the poem could arguably be construed to be a criminal threat: “For I can be the next kid to bring guns to kill students at school. So parents watch your children cuz I’m BACK!!” Mary believed this was a threat, but her testimony reveals that her conclusion rested upon a considerable amount of interpretation:

I feel that when he said, “I can be the next person,” that he meant that he will be, because also he says that he’s dark, destructive, and dangerous person. And I’d describe a dangerous person as someone who has something in mind of killing someone or multiple people.

The juvenile court’s finding that minor threatened to kill Mary and Erin likewise turned primarily on its interpretation of the words, “For I can be the next kid to bring guns to kill students at school” to mean not only that minor could do so, but that he would do so. In other words, the court construed the word “can” to mean “will.” But that is not what the poem says. However the poem was interpreted by Mary and Erin and the court, the fact remains that “can” does not mean “will.” While the protagonist in “Faces” declares that he has the potential or capacity to kill students given his dark and hidden feelings, he does not actually threaten to do so. While perhaps discomforting and unsettling, in this unique context this disclosure simply does not constitute an actual threat to kill or inflict harm.

As is evident, the poem “Faces” is ambiguous and plainly equivocal. It does not describe or threaten future conduct, because it does not state that the protagonist plans to kill students, or even that any potential victims would include Mary or Erin. Such ambiguity aside, it appears that Mary actually misread the text of the poem. In her e-mail to Rasmussen, she stated that the poem read, “He’s ‘going to be the next person to bring a gun to school and kill random people.’” She did not tell Rasmussen that this was her interpretation of the poem but asserted that those were the words used by minor. Given the student killings in Columbine and Santee, this may have been an understandable mistake, but it does not alter the requirement that the words actually used must constitute a threat in light of the surrounding circumstances.

The court of appeal rejected minor’s contention that the protagonist in the poem was a fictional character rather than minor, because he gave the poem to Mary with a note stating that the poem described “me and my feelings.” There is no inconsistency, however, in viewing the protagonist as a fictional character while also concluding that the poem reflects minor’s personal feelings. And when read by another person, the poem may similarly describe that reader’s feelings, as minor implied when he asked Mary if the poem also “described [her] and [her] feelings.” More important, the note is consistent with the contention that the poem did nothing more than describe certain dark feelings. The note asked whether Mary had the same feelings; it did not state or imply something to the effect of, “This is what I plan to do; are you with me?” (Of course, exactly what the poem means is open to varying interpretations, because a poem may mean different things to different readers.)

As a medium of expression, a poem is inherently ambiguous. In general, “reasonable persons understand musical lyrics and poetic conventions as the figurative expressions which they are,” which means they “are not intended to be and should not be read literally on their face, nor judged by a standard of prose oratory.” Ambiguity in poetry is sometimes intended: “‘Ambiguity’ itself can mean an indecision as to what you mean, an intention to mean several things, a probability that one or the other or both of two things has been meant, and the fact that a statement has several meanings.” As the court of appeal observed in a case involving a painting graphically depicting a student shooting a police officer in the back of the head, “a painting—even a graphically violent painting—is necessarily ambiguous because it may use symbolism, exaggeration, and make-believe.” This observation is equally applicable to poetry, since it is said that “painting is silent poetry, and poetry painting that speaks.”

In short, viewed in isolation the poem is not “so unequivocal” as to have conveyed to Mary and Erin a gravity of purpose and an immediate prospect that minor would bring guns to school and kill them. Ambiguity, however, is not necessarily sufficient to immunize the poem from being deemed a criminal threat, because the surrounding circumstances may clarify facial ambiguity. As Section 422 makes clear, a threat must “on its face and under the circumstances in which it is made, [be] so unequivocal, unconditional, immediate, and specific as to convey . . . a gravity of purpose and an immediate prospect of execution of the threat.” When the words are vague, context takes on added significance, but care must be taken not to diminish the requirements that the communicator have the specific intent to convey a threat and that the threat be of such a nature as to convey a gravity of purpose and immediate prospect of the threat’s execution.

Unlike some cases that have turned on an examination of the surrounding circumstances given a communication’s vagueness, incriminating circumstances in this case are noticeably lacking: there was no history of animosity or conflict between the students . . . no threatening gestures or mannerisms accompanied the poem . . . and no conduct suggested to Mary and Erin that there was an immediate prospect of execution of a threat to kill. Thus the circumstances surrounding the poem’s dissemination fail to show that, as a threat, it was sufficiently unequivocal to convey to Mary and Erin an immediate prospect that minor would bring guns to school and shoot students.

The themes and feelings expressed in “Faces” are not unusual in literature:

Literature illuminates who ‘we’ are: the repertory of selves we harbor within, the countless feelings we experience but never express or perhaps even acknowledge, the innumerable other lives we could but do not live, all those ‘inside’ lives that are not shown, not included in our resumes.48

“Faces” was in the style of a relatively new genre of literature called “dark poetry” that . . . is an extension of the poetry of Sylvia Plath, John Berryman, Robert Lowell, and other confessional poets who depict “extraordinarily mean, ugly, violent, or harrowing experiences.” Consistent with that genre, “Faces” invokes images of darkness, violence, discontentment, envy, and alienation. The protagonist describes his duplicitous nature—malevolent on the inside, felicitous on the outside.

Holding

For the foregoing reasons, we hold the poem entitled “Faces” and the circumstances surrounding its dissemination fail to establish that it was a criminal threat, because the text of the poem, understood in light of the surrounding circumstances, was not “so unequivocal, unconditional, immediate, and specific as to convey to [the two students] a gravity of purpose and an immediate prospect of execution of the threat.” Our conclusion that the poem was not an unequivocal threat disposes of the matter and we need not, and do not, discuss minor’s contention that he did not harbor the specific intent to threaten the students, as required by Section 422.

This case implicates two apparently competing interests: a school administration’s interest in ensuring the safety of its students and faculty versus students’ right to engage in creative expression. Following Columbine, Santee, and other notorious school shootings, there is a heightened sensitivity on school campuses to latent signs that a student may undertake to bring guns to school and embark on a shooting rampage. Such signs may include violence-laden student writings. For example, the two student killers at Columbine had written poems for their English classes containing “extremely violent imagery.” Ensuring a safe school environment and protecting freedom of expression, however, are not necessarily antagonistic goals.

Minor’s reference to school shootings and his dissemination of his poem in close proximity to the Santee school shooting no doubt reasonably heightened the school’s concern that minor might emulate the actions of previous school shooters. Certainly, school personnel were amply justified in taking action following Mary’s e-mail and telephone conversation with her English teacher, but that is not the issue before us. We decide here only that minor’s poem did not constitute a criminal threat.

For the foregoing reasons, we reverse the judgment of the court of appeal.

Concurring, Baxter, J.

Applying the independent review standard proper for cases implicating First Amendment interests, I agree the evidence does not establish this specific element. The writing, in the form of a poem, that defendant handed to Mary S. and Erin S. said that the protagonist, “Julius AKA Angel,” “can be the next kid to bring guns to kill students at school.” It did not say, in so many words, that defendant presently intended to do so. And the surrounding circumstances did not lend unconditional meaning to this conditional language. That said, there is no question that defendant’s ill-chosen words were menacing by any common understanding, both on their face and in context. The terror they elicited in Mary S., and the concern they evoked in the school authorities, were real and entirely reasonable. It is safe to say that fears arising from a raft of high school shooting rampages, including those in Colorado and Santee, California, are prevalent among American high school students, teachers, and administrators. Certainly this was so on March 16, 2001, only eleven days after the Santee incident had occurred. That is the day defendant selected to press his violent writing on two vulnerable and impressionable young schoolmates who hardly knew him. Defendant admitted at trial that he intentionally combined the subject matter and the timing for maximum shock value. Indeed, he acknowledged, his words would be interpreted as threats by “kids who didn’t know [he was] just kidding.”

Under these circumstances, as the majority observe, school and law enforcement officials had every reason to worry that defendant, deeply troubled, was contemplating his own campus killing spree. The important interest that underlies the criminal-threat law—protection against the trauma of verbal terrorism—was also at stake. Accordingly, the authorities were fully justified, and should be commended, insofar as they made a prompt, full, and vigorous response to the incident. They would have been remiss had they not done so. Nothing in our very narrow holding today should be construed as suggesting otherwise.

You Decide 2.4: Picou v. Gillum, 874 F.2d 1519 (11th Cir. 1989).

The question presented is whether the federal Constitution prohibits Florida from requiring riders of motorcycles to wear protective headgear. Appellant's complaint alleged that he uses a motorcycle as his primary means of transportation, that he wishes to ride without a helmet, and that appellees have enforced the statute by arresting and prosecuting violators in Pasco County and will continue to do so.

Facts

Appellant David L. Picou brought this suit against appellee Jim Gillum, Sheriff of Pasco County, Florida, and appellee James T. Russell, Florida State Attorney for Pasco County, seeking a declaratory judgment that Florida's mandatory motorcycle helmet law, Fla.Stat. Sec. 316.211, is unconstitutional. The Florida statute provides in relevant part:

(1) No person shall operate or ride upon a motorcycle unless he is properly wearing protective headgear securely fastened on his head which complies with standards established by the department.

(2) No person shall operate a motorcycle unless he is wearing an eye-protective device over his eyes of a type approved by the department.

Appellant contended that the statute violated federal constitutional rights to Due Process, Equal Protection, and privacy. The district court dismissed the complaint. On appeal, a panel of this Court held remanded the case to the district court for consideration of appellant's privacy argument. The district court held that the Supreme Court's privacy opinions did not support appellant's contentions, and upheld the helmet statute.

Reasoning

This appeal presents us with the latest in a long line of challenges to the constitutionality of mandatory helmet laws. Helmet statutes have been the subject of numerous published opinions from state courts. Although a few courts in the late 1960's and early 1970's held motorcycle helmet laws unconstitutional,1 each of these cases has been reversed or overruled. Courts in subsequent cases have uniformly upheld the provisions. Indeed, various constitutional challenges to Florida's statute have been rejected both by Florida courts, and by a three-judge federal district court.

Appellant first relies on Supreme Court cases recognizing a right to privacy. The Due Process Clause of the Fourteenth Amendment embodies important protections against state intrusion on intimate and fundamental personal decisions. As in Roe v. Wade, , and Griswold v. Connecticut, the right extends to reproductive decisions that are by their nature highly private. Also protected are decisions concerning the structure of the family unit, , and parental freedom to control the education of their children. But the rights involved in these cases do not resemble the right claimed here. There is little that could be termed private in the decision whether to wear safety equipment on the open road. Indeed, the Supreme Court has repeatedly declined to recognize a constitutional right that would cover appellant's case.

Appellant concedes that his case is not covered by existing precedents defining the right to privacy. He contends, however, that those precedents stand for a broader proposition: that the Constitution protects the "right to be let alone." He further casts his argument in terms of a right to be free from "paternalistic" legislation. In other words, appellant argues that the Constitution forbids enforcement of any statute aimed only at protecting a State's citizens from the consequences of their own foolish behavior and not at protecting others.

First, there is no broad legal or constitutional "right to be let alone" by government. In the complex society in which we live, the action and nonaction of citizens are subject to countless local, state, and federal laws and regulations. Bare invocation of a right to be let alone is an appealing rhetorical device, but it seldom advances legal inquiry, as the "right"--to the extent it exists--has no meaning outside its application to specific activities. The Constitution does protect citizens from government interference in many areas--speech, religion, the security of the home. But the unconstrained right asserted by appellant has no discernable bounds, and bears little resemblance to the important but limited privacy rights recognized by our highest Court. As the Court has stated, "the protection of a person's general right to privacy--his right to be let alone by other people--is like the protection of his property and his very life, left largely to the law of the individual States."

Whatever merit may exist in appellant's further contention that paternalistic legislation is necessarily invalid, this argument is inapplicable to Fla.Stat. Sec. 316.211. The helmet requirement does not implicate appellant alone. Motorcyclists normally ride on public streets and roads that are maintained and policed by public authorities. Traffic is often heavy, and on highways proceeds at high rates of speed. The required helmet and faceshield may prevent a rider from becoming disabled by flying objects on the road, which might cause him to lose control and involve other vehicles in a serious accident.

It is true that a primary aim of the helmet law is prevention of unnecessary injury to the cyclist himself. But the costs of this injury may be borne by the public. A motorcyclist without a helmet is more likely to suffer serious head injury than one wearing the prescribed headgear. State and local governments provide police and ambulance services, and the injured cyclist may be hospitalized at public expense. If permanently disabled, the cyclist could require public assistance for many years. As Professor Tribe has expressed it, "[in] a society unwilling to abandon bleeding bodies on the highway, the motorcyclist or driver who endangers himself plainly imposes costs on others." Leaving aside the deference traditionally accorded to state highway safety regulation, we think Florida's helmet requirement a rational exercise of its police powers.

There is a strong tradition in this country of respect for individual autonomy and mistrust of paternalistic legislation. Appellant, like many of his predecessors in helmet law cases, cites John Stuart Mill for the proposition that "the only purpose for which power can rightfully be exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant." J. Mill, On Liberty (1859). In fact, Thomas Jefferson presaged Mill by three quarters of century, writing in 1787 that "the legitimate powers of government extend to such acts only as are injurious to others." Notes on the State of Virginia in Jefferson, Writings 285 (Library of America ed. 1984) But the impressive pedigree of this political ideal does not readily translate into a constitutional right.

Legislatures and not courts have the primary responsibility for balancing conflicting interests in safety and individual autonomy. Indeed, the evidence suggests that arguments asserting the importance of individual autonomy may prevail in the political process. In the mid-1970's, opponents of helmet requirements successfully lobbied for amendment of a federal law that allowed withholding of federal highway funds from States without helmet statutes.). More recently, Massachusetts' mandatory seatbelt law was repealed by referendum after opponents attacked it as an infringement on personal liberties.

Subsequent studies suggest that repeal of these safety measures can have a substantial cost in lives and property. . But it is no more our role to impose a helmet requirement on this ground than to invalidate Florida's helmet law on the grounds urged by appellant. Although a narrow range of privacy rights are shielded from the political process by the Constitution, the desirability of laws such as the Florida helmet requirement is a matter for citizens and their elected representatives to decide.

Holding

We think the district court was correct to conclude that appellant "has shown no reason in history, in policy, or in logic why a constitutional right should extend to his decision to forego a motorcycle helmet." The judgment of the district court is therefore affirmed.

CHAPTER THREE

You Decide 3.1: PEOPLE V. MARTINO, 970 N.E.2d 123 (2012 Ill. App.)

Presiding Justice JORGENSEN delivered the judgment of the court, with opinion.

On November 8, 2008, defendant, Thomas F. Martino, and his wife, Carmen Keenon, got into an argument, and, when police responded, they observed defendant on top of Keenon on the stair landing outside of the couple's apartment. The officers ordered defendant to get off of Keenon, defendant refused to comply with the officers' orders, the officers tased defendant, and defendant fell on Keenon's arm, breaking it. Defendant was taken into custody and never posted bond. Subsequently, defendant was charged with, among other things, aggravated domestic battery and aggravated battery (see 720 ILCS 5/12-3.3(a), 12-4 (West 2008)). In both of these counts defendant was charged with knowingly causing great bodily harm to Keenon when he broke her arm. The trial court found defendant guilty of aggravated domestic battery, aggravated battery, unlawful restraint (720 ILCS 5/10-3 (West 2008)), and two counts of resisting or obstructing a police officer (720 ILCS 5/31-1 (West 2008)). The aggravated battery conviction merged into the conviction of aggravated domestic battery, and defendant was sentenced to concurrent terms totaling 180 days in jail and 4 years of probation. In fashioning the sentence, the court ordered defendant to pay various fines and fees. Included in these fines and fees were multiple Violent Crime Victims Assistance Fund fines, document storage fees, court automation fees, circuit court clerk fees, court security fees, County Jail Medical Costs Fund fees, court finance fees, State's Attorney's assessments, drug court/mental health court fines, and Children's Advocacy Center fines, as well as a single anti-crime program fine. Although the court gave defendant credit against his sentence for the time he served in presentencing custody, the court did not give defendant credit against his fines for the time he served in custody. On appeal, defendant claims that he was not proved guilty beyond a reasonable doubt of aggravated domestic battery, that he is entitled to a credit against his fines of $5 for each day he served in presentencing custody, that various fines and fees may not be imposed on every conviction, and that his Violent Crime Victims Assistance Fund fines must be reduced to comply with the statute. For the reasons that follow, we reverse defendant's conviction of and sentence for aggravated domestic battery, award defendant credit against his fines for the time he served in presentencing custody, vacate some of the fines and fees imposed, and reduce defendant's Violent Crime Victims Assistance Fund fines.

Defendant and Keenon, who lived in a second-floor apartment in downtown Wheaton, went out for drinks and dinner in downtown Wheaton. At around midnight, the couple was walking home when defendant fell into a pile of leaves. Keenon testified that defendant did not fall into the leaves because he was intoxicated. Rather, Keenon believed that defendant was playing around, enjoying the last nice fall day of the year.

When Keenon was unable to get defendant out of the pile of leaves, she threw her wedding ring at him and walked home. A neighbor saw defendant in the leaves and helped defendant walk back to the couple's apartment. After the neighbor left, Keenon asked defendant if he picked up her wedding ring before he came home. Defendant, who was angry at Keenon for throwing her ring, grabbed Keenon by the throat and shoved her down the stairs outside of the couple's apartment. Keenon landed on the first small landing of the stairs, with her head resting on the first stair leading up to the couple's apartment. As she lay in this position, defendant, who was on top of her, began using a great amount of force to choke her. Keenon, who believed that she was going to die, threw up as defendant was choking her.

The police were called, and, when they arrived, they ordered defendant to get off of Keenon, who was asking for help and crying. Defendant, who was no longer choking Keenon, explained to the police that Keenon was throwing up and that he was trying to help her. The police ordered defendant to get off of Keenon, telling him that they would help her. Defendant replied, in a combative tone, "[Y]ou ain't going to fucking do anything." The police again told defendant to get off of Keenon and come down the stairs and that, if he did not comply, he would be tased. After the police repeated these orders several more times and began moving up the stairs toward defendant, defendant stood up, moved to the front of the landing, and "squared off" against the police in a way that indicated that he wanted to fight. Defendant then took "an aggressive stance," clenching his fists and placing his hands down at his sides. While standing in this position, defendant yelled at the police, "Come on."

At this point, one of the officers tased defendant. Defendant dropped to the ground, having lost control of his muscles because of being tased. Defendant fell backward on top of Keenon, who had not moved since the police arrived. When defendant fell, Keenon heard a "crunch." Although Keenon did not initially feel any pain in her arm when defendant landed on her, she learned later that defendant broke her elbow when he fell on it.

At the close of the State's case, defendant moved for a directed finding, arguing, among other things, that he should not be found guilty of battering Keenon, because Keenon's arm was broken as a result of his involuntary act of collapsing on Keenon after the police tased him. The trial court denied the motion.

After the trial court ruled on defendant's motion for a directed finding, defendant rested. The trial court found defendant guilty on all counts, and defendant moved for a new trial. The trial court denied the motion and sentenced defendant. In imposing the sentence, the court gave defendant credit against his sentence for the time he served in presentencing custody, but the court did not give defendant credit against his fines for that time. Additionally, the court imposed four document storage fees, four court automation fees, four circuit clerk fees, four court security fees, four County Jail Medical Costs Fund fees, four court finance fees, four State's Attorney's assessments, four Violent Crime Victims Assistance Fund fines, four drug court/mental health court fines, and four Children's Advocacy Center fines, as well as an anti-crime program fine.1 When the court imposed the Violent Crime Victims Assistance Fund fines, it calculated the amounts of those fines as if no other fines were imposed. See 725 ILCS 240/10(c) (West 2008). Defendant never argued that any of the fines or fees imposed were incorrect or that he was entitled to credit against his fines for the time he served in presentencing custody. This timely appeal followed.

Every offense is comprised of both a voluntary act and a mental state. A defendant who commits a voluntary act is held accountable for his act, but a defendant is not criminally liable for an involuntary act. Involuntary acts are those that "occur as bodily movements which are not controlled by the conscious mind." Examples of involuntary acts include those acts performed while a defendant is convulsing, sleeping, unconscious, under hypnosis, or seizuring. Acts that result from a reflex or that "are not a product of the effort or determination of [the defendant], either conscious or habitual," are also considered involuntary acts for which the defendant cannot be held accountable. Here, defendant was convicted pursuant to section 12-3.3(a) of the Criminal Code of 1961 (720 ILCS 5/12-3.3(a) (West 2008)), which provides, in pertinent part, that "[a] person who, in committing a domestic battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated domestic battery." Thus, a defendant can be guilty of aggravated domestic battery only if his voluntary act "causes great bodily harm, or permanent disability or disfigurement."

Given the circumstances of this case, we cannot conclude that the State proved beyond a reasonable doubt that defendant's voluntary act resulted in Keenon's broken arm. Specifically, although the evidence revealed that defendant defied the police and that, because of this defiance, the police tased him, the evidence also established that the tasing of defendant rendered defendant incapable of controlling his muscles. Because defendant was incapable of controlling his muscles, his act of falling on Keenon and breaking her arm was an involuntary act for which he cannot be held accountable.. Accordingly, we determine that defendant was not proved guilty beyond a reasonable

You Decide 3.2: United States v. Black, 116 F.2d 198 (7th Cir. 1997). Cummings, J.

After receiving information from a private citizen, the Federal Bureau of Investigation looked into the transmission of child pornography by computer through America Online (AOL), a commercial computer service located in Vienna, Virginia. Its electronic message bulletin board enables subscribers to send messages to each other and attach files containing pictures. A grand jury subpoena was served on AOL for its records associated with a user who identified himself on the bulletin board as "B FOX 332." AOL's records revealed that the account belonged to Bruce Black. At the time, Black was living in an apartment in Champaign, Illinois, and was employed by the Prairielands Counsel of the Boy Scouts of America. A search warrant was executed on AOL, yielding subscriber information and detailed billing records for defendant's account, which hadbeen activated 146 times from January 1, 1995 to June 16, 1995. The records revealed both distribution and receipt of files by defendant. On five occasions he was the originator of several child pornography files on to the AOL system (i.e., he was the AOL subscriber who first "uploaded" the image on to the system), on six other occasions he received such files, and on two other occasions he distributed such files by forwarding the images he received to another AOL subscriber. In August 1995, FBI agents went to Black's apartment to execute their search warrant, but Black himself consented to the search, which resulted in the seizure of seven three-ring binders containing numerous printed photographs of child pornography showing minors engaging in sexually explicit acts. Besides the binders in his bedroom, the FBI agents found a personal computer system with a printer and 350 computer diskettes. A Board-certified pediatrician, Dr. Kathleen Buetow, examined some of the pictures of male children found in Black's residence and stated that 20 of the 40 images she reviewed were of pre-pubescent children. Black consented to be interviewed by the FBI agents and admitted that he owned the personal computer system, was a subscriber to AOL and ordinarily used the screen name B FOX 332. He admitted that he regularly received and occasionally disseminated images via computer depicting children in sexually explicit conduct. He referred to this material as "child pornography" or "kiddie porn" and said he had retained everything he received and kept most of it in the ring binder albums stored in his bedroom. Black's motion to dismiss the indictment was denied and at another hearing regarding subsequent motions, Black stated that he was not offering an insanity defense under 18 U.S.C. Section 17

On June 3, 1996, the government and Black entered into three stipulations. The first agreed that Black "was a pedophile and/or ephebophile [sexually attracted to young men]" and that "the receipt, collection and distribution of child pornography was a pathological symptom of the defendant's pedophilia and/or ephebophilia." The second was that Black "did not receive, collect or distribute child pornography for commercial purposes or monetary gain" and that he "did not trade child pornography on a numerically equal basis with other individuals who received, collected or distributed child pornography." The third provided that "the graphic images of child pornography charged in the indictment were received or distributed by the defendant . . . [and had] traveled in interstate commerce." On the same date, the parties entered into a plea agreement under which the defendant entered a plea of guilty to all nine counts of the indictment. At the subsequent sentencing hearing, the government sought a five-point increase in Black's offense level pursuant to Sentencing Guideline Section 2G2.2(b)(2) due to his distribution of child pornography. Black objected to the enhancement, and the district court agreed that it should not apply because of the absence of pecuniary gain. Thereafter Black was sentenced to 18 months imprisonment plus three years of supervised release.

Black's prosecution was not in violation of the Eighth Amendment Black argues that his prosecution under 18 U.S.C. Section 2252 is unconstitutional under the Eighth Amendment because he is a pedophile or ephebophile. Relying on Robinson v. California, and Justice White's concurrence in Powell v. Texas, Black maintains that he has been convicted based on his status as a pedophile or ephebophile. However, the indictment does not criminalize him in that capacity but simply charges him for his conduct of receiving, possessing and distributing child pornography that traveled in interstate commerce. Thus Robinson is simply inapposite on its face because the statutes involved here do not criminalize the statuses of pedophile or ephebophile. Black is not raising an insanity defense under 18 U.S.C. Section 17 but claims that he is immune from prosecution under 18 U.S.C. Section 2252 because as a pedophile or ephebophile he is compelled to collect, receive and distribute child pornography. A similar argument was rejected with respect to public intoxication in Powell v. Texas, In Powell, the defendant argued that under the Court's decision in Robinson v. California, his conviction for public intoxication was barred by the Eighth Amendment because it effectively criminalized his status as a chronic alcoholic. A majority of the justices concluded that Robinson did not control the outcome of the case because Powell was subject to criminal sanctions "not for being a chronic alcoholic, but for being in public while drunk on a particular occasion." ("Powell showed nothing more than that he was to some degree compelled to drink and that he was drunk at the time of his arrest. He made no showing that he was unable to stay off the streets on the night in question.") (White, J., concurring). Similarly, although Black may have shown--indeed it is stipulated--that he is a pedophile and/or ephebophile and that his receipt, distribution and possession of child pornography "was a pathological symptom of [his] pedophilia and/or ephebophilia," he did not show that this charged conduct was involuntary or uncontrollable. Indeed, various of the psychological reports contained in the record indicate that defendant could control his impulses to access child pornography. In particular, a summary report prepared by the government's expert, following a 4 3/4-hour interview with defendant notes, that statements made by Mr. Black in the course of his evaluation indicate that he was able to appreciate the nature and quality and the wrongfulness of his acts, relative to involvement with child pornography. History provided by Mr. Black also indicates that he did not suffer a reduced mental capacity from the presence of a mental disorder that interfered with his knowingly, purposely, and voluntarily committing the alleged offenses. History provided by Mr. Black also indicates he was able to resist sexually deviant urges and impulses related to his involvement in the child pornography activities.

Another report indicates that Black confined his computer access to child pornography to periods when his roommate was away from the apartment. Simply put, Black did not show that his child pornography offenses were involuntary and uncontrollable because he is a pedophile or ephebophile. We note in this regard that we have carefully reviewed all of the psychiatric and psychological literature excerpts that Black has submitted to the Court and find no basis in this literature for concluding that Black's charged conduct was involuntary or otherwise uncontrollable.

You Decide 3.3: State v. Cash.

Cash had no duty to assist Sherrice Iverson. There was no status, contract, statute and Cash did not assume a duty or create the peril. On the other hand, it might be argued that Cash assumed a duty when he entered the bathroom and attempted to get Strohmeyer’s attention.

You Decide 3.4: Jackson v. Commonwealth, 38 S.W. 422 (Ky. App. 1896).

The court in Jackson undoubtedly realized the difficulty presented by this case and avoided the issue of concurrence. These types of cases have posed a challenge for courts. Clearly the intent and act did not concur. Courts have used a creative approach and have argued that the disposal of the body was part of the original plan or that the killing and disposal were part of a single scheme with a common intention. This would permit Ohio to retain jurisdiction over the murder. Other courts have ruled that jurisdiction resides in Kentucky.

You Decide 3.5: PEOPLE V. CERVANTES. 29 P.3D 225 (Cal. 2010). Opinion By: Baxter J.

Issue

This case presents a question concerning proof of proximate causation in a provocative act murder case. We granted review to decide whether defendant, a member of a street gang, who perpetrated a nonfatal shooting that quickly precipitated a revenge killing by members of an opposing street gang, is guilty of murder on the facts before us.

Facts

Shortly after midnight on October 30, 1994, defendant and fellow Highland Street gang members went to a birthday party in Santa Ana thrown by the Alley Boys gang for one of their members. Joseph Perez, the prosecution's gang expert, testified the Highland Street and Alley Boys gangs were not enemies at the time. Over 100 people were in attendance at the party, many of them gang members.

Outside of the house, defendant approached a woman he knew named Grace. She was heavily intoxicated and declined defendant's invitation to go to another party with him, which prompted him to call her a "ho," leading, in turn, to an exchange of crude insults. Juan Cisneros, a member of the Alley Boys, approached and told defendant not to "disrespect" his "homegirl." Richard Linares, also an Alley Boy, tried to defuse the situation, but Cisneros drew a gun and threatened to "cap [defendant's] ass." Defendant responded by brandishing a handgun of his own, 1 which prompted Linares to intervene once again, pushing or touching defendant on the shoulder in an effort to separate him from Cisneros. In response, defendant stated "nobody touches me" and shot Linares through the arm and chest.

A crowd of some 50 people was watching these events unfold. Someone yelled, "Why did you shoot my home boy?" or "your home boy shot your own homeboy," to which someone responded "Highland [Street] is the one that shot." A melee erupted, and gang challenges were exchanged.

A short time later, a group of Alley Boys spotted Hector Cabrera entering his car and driving away. Recognizing him as a member of the Highland Street gang, they fired a volley of shots, killing him. A variety of shell casings recovered from the street evidenced that at least five different shooters had participated in the murder of Cabrera.

Perez testified that although the Highland Street and Alley Boys gangs were not enemies at the time of the shootings, both gangs would be expected to be armed. He opined that the Alley Boys would consider defendant's conduct in shooting Linares to be an act of "major disrespect" to their gang. To avenge the shooting, they would be expected to respond quickly with equal or greater force against defendant or another member of his gang. Therefore, Perez opined, Cabrera's death was a reasonably foreseeable consequence of defendant's actions.

Defendant testified he did not intend to shoot Linares, but was simply trying to protect himself from Cisneros, who drew his weapon first. He was surprised when his gun went off, because he did not feel it fire or see any flash. He testified, "I don't know if I shot [Linares] or somebody else shot [him], but what I do know is that if I [had] attempted to murder anybody, I would have shot [him] while he was on the floor." In the confusion following the shooting of Linares, defendant heard someone say, "[Y]our home boy shot your own home boy," and then he heard someone say "Highland's the one that shot." Realizing he was in danger, defendant ran from the party and sped off with several others. He heard shots being fired as they drove away. He was stopped by police and arrested a short distance away.

Defendant was charged with murdering Cabrera. … The jury was … instructed that liability for homicide requires a causal connection between an unlawful act and death, namely, that the act's direct, natural and probable consequences must be death. …[T]he jury was instructed that a direct, natural and probable consequence must be reasonably foreseeable, measured objectively under a reasonable person test. …The jury convicted defendant of the murder of Cabrera, fixed at second degree.

Reasoning

The question before us is, therefore, whether sufficient evidence supports defendant's conviction of murder based on the provocative act murder theory. …In particular, the essential element with which we are here concerned is proximate causation in the context of a provocative act murder prosecution.

In homicide cases, a "cause of the death of [the decedent] is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or mission the death of [the decedent] and without which the death would not occur." In general, "[p]roximate cause is clearly established where the act is directly connected with the resulting injury, with no intervening force operating." In this case there was an intervening force in operation--at least five persons in attendance at the party, presumably all members of the Alley Boys, shot and killed Highland Street gang member Hector Cabrera in a hail of bullets shortly after the melee erupted. …

The provocative act murder doctrine has traditionally been invoked in cases in which the perpetrator of the underlying crime instigates a gun battle, either by firing first or by otherwise engaging in severe, life-threatening, and usually gun-wielding conduct, and the police, or a victim of the underlying crime, responds with privileged lethal force by shooting back and killing the perpetrator's accomplice or an innocent bystander. In People v. Gilbert, 408 P.2d 365 (Cal. 1965) we stated that:

When the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life."

We then discussed causation:

[T]he victim's self-defensive killing or the police officer's killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant or his accomplice."

In short, Gilbert described provocative act murder liability in traditional terms of proximate causation and …reaffirmed the general rule that no criminal liability attaches …for an unlawful killing that results from an independent intervening cause (i.e., a superseding cause). In contrast, when the death results from a dependent intervening cause, the chain of causation ordinarily remains unbroken and the initial actor is liable for the unlawful homicide. …

In an early Illinois case, Belk v. The People (1888) 125 Ill. 584, the defendants were alleged to have negligently allowed their team of horses to break loose on a narrow country lane. The team collided with a wagon in plain sight just ahead, causing that wagon's team of horses to panic and run away and thereby throwing the victim, a passenger, to her death. The Illinois court reversed the resulting manslaughter convictions on other grounds, but reasoned that " 'Between the acts of omission or commission of the defendants, by which it is alleged the collision occurred, and the injury of the deceased, there was not an interposition of a human will acting independently . . . or any extraordinary natural phenomena, to break the causal connection.' " We also cited Madison v. State (1955) 234 Ind. 517, in which "the court … affirmed a conviction of second degree murder when the defendant threw a hand grenade at one Couch who, presumably impulsively [i.e., instinctively and not as an act of will], kicked it to another who was killed. 'The fact that Couch kicked the grenade did not break the line of causation.' . . ." And we recalled Wright v. State (Fla.Dist.Ct.App. 1978) 363 So.2d 617, wherein the defendant was convicted of manslaughter for firing from his car into his intended victim's car. The intended victim had " 'rapidly accelerated his car while "ducking bullets" ' " and fatally ran over a pedestrian. We found the significance of the facts and holding in Wright to be as follows: "Shots that cause a driver to accelerate impulsively and run over a nearby pedestrian suffice to confer liability; but if the driver, still upset, had proceeded for several miles before killing a pedestrian, at some point the required causal nexus would have become too remote for the [shooter] to be liable for homicide."

The principles derived from these and related authorities have been summarized as follows.

In general, an 'independent' intervening cause will absolve a defendant of criminal liability. However, in order to be 'independent' the intervening cause must be 'unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause.' On the other hand, a 'dependent' intervening cause will not relieve the defendant of criminal liability. …If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is ‘dependent’ and not a superseding cause, and will not relieve defendant of liability.

… The precise consequence need not have been foreseen; it is enough that the defendant should have forseen the possibility of some harm of the kind which might result from his act."

Facts

Turning to the facts at hand, we agree with defendant that the evidence introduced below is insufficient as a matter of law to support his conviction of provocative act murder, for it fails to establish the essential element of proximate causation. The facts of this case are distinguishable from the classic provocative act murder case in a number of respects. Defendant was not the initial aggressor in the incident that gave rise to the provocative act. There was no direct evidence that Cabrera's unidentified murderers were even present at the scene of the provocative act, i.e., in a position to actually witness defendant shoot Linares. Defendant himself was not present at the scene where Cabrera was fatally gunned down; the only evidence introduced on the point suggests he was already running away from the party or speeding off in his car when the victim was murdered.

But the critical fact that distinguishes this case from other provocative act murder cases is that here the actual murderers were not responding to defendant's provocative act by shooting back at him or an accomplice, in the course of which someone was killed. They were not in the shoes of police officers …who shot back and killed an accomplice as an objectively "reasonable response to the dilemma thrust upon [them]" by the defendant's malicious and life-endangering provocative acts. ...and were not like the intermediary in Madison v. State who instinctively kicked away a live hand grenade thrown at him by defendant Madison, resulting in the death of another.

On the contrary… nobody forced the Alley Boys' murderous response in this case, if indeed it was a direct response to defendant's act of shooting Linares. The willful and malicious murder of Cabrera at the hands of others was an independent intervening act on which defendant's liability for the murder could not be based.

The circumstance that the murder occurred a very short time after defendant shot Linares, and the opinion of prosecution gang expert Perez that Cabrera's murder was a foreseeable consequence of defendant's shooting of Linares in the context of a street gang's code of honor mentality, was essentially the only evidence on which the jury was asked to find that Cabrera's murder was "a direct, natural, and probable consequence" of defendant's act of shooting Linares. Given that the murder of Cabrera by other parties was itself felonious, intentional, perpetrated with malice aforethought, and directed at a victim who was not involved in the original altercation between defendant and Linares, the evidence is insufficient …to establish the requisite proximate causation to hold defendant liable for murder.

Holding

The judgment of the Court Appeal is reversed to the extent it affirms defendant's conviction of murder…

CHAPTER FOUR

You Decide 4.1: Commonwealth v. Cordeiro, 519 N.E.2d 1320 (Mass. 1998); Commonwealth v. Vieira, 519 N.E.2d 1320 (Mass. 1998).

The men in the bar witnessed and encouraged the rape. Their sharing of the intent to rape the victim may be inferred from their shouts of support. This encouragement satisfies the actus reus of accessoryship. There is no requirement that the prosecution demonstrate that the men actually assisted the rape the woman who entered the bar. They are guilty as principles and at common law would be considered principles in the second degree.

You Decide 4.2: Colorado v. Manes.

Manes purchased a semiautomatic handgun for Harris and several months later sold him one hundred rounds of ammunition. There is no indication that he was informed of Harris and Dylan Klebald’s plans to shoot the students at Columbine High School and Manes therefore cannot be held to have shared their intent to attack the students. Manes’ also cannot be convicted as an accessory before the fact under a “knowing” standard since he was not informed of the impending attack.

You Decide 4.3: State v. Bellamy 617 S.E. 2d 81 (N.C. App. 2005.)

On 23 September 2002, C.B. was working the evening shift as the assistant manager of a McDonald's at Long Leaf Mall in Wilmington. On her crew during the shift were defendant Leon McCoy (McCoy) and Andre Randall (Randall), who frequently worked together on the same shift. C.B. closed the lobby and locked the doors at 10:00 that night, though the drive-thru window remained open until 11:00. Ordinarily McCoy took out the trash, however on that night Randall took it out, and, contrary to policy, failed to notify C.B. that he was doing so. The manager should have opened and shut the locked door for Randall, however Randall simply turned the deadbolt in a way that kept the door ajar. It was through this open door that an armed assailant entered at around 11:30, as McCoy was mopping the hallway and C.B. was preparing the night deposit. The assailant went into the office and put a gun to the side of C.B.'s head. He wore a green ski mask, but she could tell it was a black male who was about her height. He demanded the deposit money, and also took C.B.'s personal cash. He demanded a bag for the cash. McCoy, who was lying on the floor outside the office, went to the front near the service counter and got a bag. Though there were several silent alarms in this area, McCoy did not activate any of them.

Once he bagged the money, the robber told C.B. to undress. As she was unbuttoning her shirt, he said it was taking too long and he told her to just drop her pants and underwear. He then demanded that she spread her labia apart. He stooped down to inspect her genitals, and used the barrel of his gun to pull her labia further apart. He noticed that she had a tampon inserted, and told her that she was "lucky". The assailant then departed with the money. After the assailant left, McCoy went to the front of the store and hit a silent alarm.

McCoy and Randall often rode to work together. At trial, Randall testified that: He saw no one outside as he took out the trash that night, but he did see a white Mitsubishi Galant in the parking lot. Defendant Keith Lamar Bellamy (Bellamy) owned a burgundy Honda automobile, but at the time of the robbery he was driving his cousin's 1995 white Mitsubishi Galant. Bellamy and McCoy knew each other and were friends. Randall knew Bellamy from seeing him around the neighborhood and from playing basketball with him. McCoy was having financial problems before the robbery. McCoy lived in a boarding house and at times would be late with his rent and get locked out of his room. McCoy was upset about his work hours being cut because he was not going to have enough money to pay his rent. A few weeks before the robbery, Randall learned that McCoy was contemplating robbing the McDonald's. A couple of days before the robbery, having been locked out of his room for non-payment, McCoy spoke more specifically about robbing the McDonald's to get money to pay his rent. McCoy was looking for Bellamy to help him commit the robbery. He told Randall not to interfere with the robbery. A couple of days or so before the robbery, McCoy left work early. Around 11:30 p.m. that night, Randall saw McCoy and Bellamy in the parking lot in the burgundy Honda. Randall believed the robbery was supposed to have taken place that night, but was called off because of police presence in the area. When Randall took the trash out on the night of the robbery and saw the white Galant in the parking lot, he knew it was Bellamy. Upon reentering the restaurant, Randall encountered a person wearing a green mask. The person pointed a gun at Randall's head and told him to get down on the floor. Randall recognized the robber's voice as Bellamy's.

Detective Overman of the Wilmington Police Department arrived at McDonald's about 12:20 a.m. McCoy told him that he could not identify the perpetrator's voice. He said the robber pointed the gun directly at him and ordered him to lie down immediately when the robber entered the restaurant. The assertion that McCoy was immediately ordered to the floor was contradicted by videotapes, which showed the office, hall, and kitchen area of the McDonald's during the robbery.

Randall and McCoy left McDonald's together, before 1:58 a.m. According to Randall, McCoy asked Randall to take him to where Bellamy lived, and used Randall's cell phone to call Bellamy's residence but no one answered. Phone records showed a call from Randall's phone to that residence at 1:58 a.m. McCoy said he needed to find Bellamy, and directed Randall to drop him off at a location where he thought Bellamy might be located. Randall testified that within a few days of the robbery, McCoy offered him $ 400 not to say anything to the police about the robbery and his role in it. He attempted to hand the money to Randall, but Randall refused.

Defendants were tried before a jury in New Hanover County Superior Court, and were found guilty of all charges on 15 August 2003. Bellamy was convicted of two counts of robbery with a dangerous weapon, and first-degree sexual offense. The two sentences were ordered to run consecutively, and resulted in a total active prison sentence of 439 months to 546 months. McCoy was convicted of two counts of robbery with a dangerous weapon and one count of first-degree sexual offense, which were consolidated for judgment, resulting in an active prison term of 307 months to 378 months.

Reasoning

As to the convictions for first-degree sexual offense, we find that there was sufficient evidence of penetration for that charge to be submitted to the jury. N.C. Gen. Stat. section 14-27.4(a)(2)a. provides: "A person is guilty of a sexual offense in the first-degree if the person engages in a sexual act: With another person by force and against the will of the other person, and: Employs or displays a dangerous or deadly weapon . . . ." "Sexual act [can be defined as] the penetration, however slight, by any object into the genital or anal opening of another person's body . . . ."

Defendants argue that the evidence at trial was insufficient on the element of penetration to allow this charge to be submitted to the jury. We disagree.

C.B. testified at trial that the assailant ordered her to drop her pants and underwear at gunpoint and asked her to spread open her labia so he could inspect her vagina. The assailant then used the barrel of his gun to separate her labia. C.B. further testified that she "felt the gun up against my private area right where the tampon would be entered." She clarified this statement by adding: "He didn't shove the … barrel of the gun directly into me. However, I did feel the barrel of the gun, the force of it in the vicinity of the area where you would put the tampon in." She further clarified that she felt the barrel of the gun on the inside of her labia.

Our Supreme Court has held that in the context of rape, evidence that the defendant entered the labia is sufficient to prove the element of penetration. We find no reason to establish a different standard for sexual offense. We hold that all of the evidence in the instant case shows that Bellamy used the barrel of his gun to spread the labia of C.B. This evidence supported the element of penetration for the first-degree sexual offense. The trial court properly denied the motions of the defendants to dismiss this charge, on this basis.

In McCoy's first argument, he contends that the trial court erred in denying his motion to dismiss the charge of first-degree sexual offense. At trial, the State proceeded against McCoy on this charge under a theory of acting concert. The State's theory at trial was that Bellamy was the masked gunman who actually robbed the McDonald's, and who perpetrated the sexual assault on C.B., but that McCoy was his inside help, and that they planned the robbery together. As a party to the robbery, the State contends that McCoy is liable as a principal under the theory of acting in concert for Bellamy's sexual assault on C.B.

The law of acting in concert in North Carolina is as follows: If "two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof."

In the instant case, the State did not argue at trial, and does not argue on appeal, that the sexual assault was done "in pursuance of the common purpose" of the robbery with a dangerous weapon. The record is completely devoid of evidence that the defendants discussed any potential sexual assault prior to the robbery. The State argues that the sexual assault was "a natural or probable consequence thereof." Whether a sexual assault is a natural or probable consequence of a robbery with a dangerous weapon of a fast food restaurant is a question of first impression in North Carolina.

The State asserts that any sexual assault perpetrated in the course of any robbery with a dangerous weapon is a natural or probable consequence thereof. Clearly, a murder committed during the course of a robbery with a dangerous weapon is normally a natural or probable consequence of that robbery with a dangerous weapon. Conversely, a murder to conceal a previous arson might not be such a consequence.. The question is one of foreseeability: if one takes the property of another at the point of a loaded gun, the violent use of that gun is a foreseeable consequence. Some jurisdictions have determined that whether a consequence of a robbery with a dangerous weapon was natural or probable is judged by an objective standard. See People v. Nguyen, 21 Cal. App. 4th 518, 531, 26 Cal.Rptr.2d 323, 331 (1993) ("the issue does not turn on the defendant's subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the" principal crime).

We decline to adopt a per se rule that any sexual assault committed during the course of a robbery is a natural or probable consequence of a planned crime. Rather, this determination must be made on a case by case basis, upon the specific facts and circumstances presented.. The issue in the instant case is whether the sex offense Bellamy committed was a natural or probable consequence of the robbery with a dangerous weapon of the McDonald's.

Concerning the foreseeability of robbery turning into a sexual offense, the California Court of Appeals has stated:

Robbery is a crime that can be committed in widely varying circumstances. It can be committed in a public place, such as on a street or in a market, or it can be committed in a place of isolation, such as in the victim's home. It can be committed in an instant, such as in a forcible purse snatching, or it can be committed over a prolonged period of time in which the victim is held hostage. During hostage-type robberies in isolated locations, sexual abuse of victims is all too common. . . . "When robbers enter the home, the scene is all too often set for other and more dreadful crimes such as that committed on [the victim] in this case. In the home, the victims are particularly weak and vulnerable and the robber is correspondingly secure. The result is all too often the infliction of other crimes on the helpless victim. Rapes consummated during the robbery of a bank or supermarket appear to be a rarity, but rapes in the course of a residential robbery occur with depressing frequency."

In the Nguyen case, the California Court of Appeals held that though in general a sexual assault in the course of a robbery of a business would not be foreseeable, on particular facts it could be. Specifically, they held that a sexual assault was a natural or probable consequence of a robbery where:

The defendants and their cohorts chose to commit robberies in businesses with a sexual aura, both from the types of services they held themselves out as providing and from the strong suspicion repeatedly expressed by the participants at the trial, that they were actually engaged in prostitution. The businesses were arranged much like a residence, with separate rooms furnished as bedrooms might be. The businesses operated behind locked doors, which both added to their sexual aura and gave the robbers security against intrusion or discovery by outsiders. The robbers went to the businesses in sufficient numbers to easily overcome any potential resistance and to maintain control over the victims for as long as they desired.

We agree that in certain factual circumstances a sexual assault in the course of a robbery of a business may be a natural or probable circumstance, but that it is less likely to be so than in the context of a robbery taking place in a home.

In the instant case, Bellamy entered McDonald's at around 11:30 at night. Though that particular McDonald's was closed (the interior closed at 10:00 p.m. and the drive-thru closed at 11:00 p.m.), in light of the fact that many McDonald's stay open later than 11:30 p.m., it would not be unusual for prospective customers to arrive at or after 11:30. The very public nature of a fast food restaurant creates a significant risk that the masked gunman or the employees lying on the floor inside might be noticed by someone outside. This is a fact of which McCoy, as an employee, would have been well aware. McCoy was also aware that there were security cameras in the store recording events during the robbery, and that there were silent alarms which other employees might have activated before Bellamy obtained control of the employees. In light of these facts, a reasonable person in McCoy's position would expect Bellamy to get in and out of the restaurant as quickly as possible to avoid capture or recognition.

Holding

On these facts, and in this kind of a public business, we cannot find that a reasonable person in McCoy's position would have foreseen that Bellamy would take the time to deviate from the planned robbery to commit this type of bizarre sexual assault on C.B. It was the State's burden to prove beyond a reasonable doubt that this sexual assault was a natural and probable result of the robbery with a dangerous weapon, and it has failed to meet this burden. The trial court erred in failing to dismiss the first-degree sexual offense charge against McCoy. We reverse judgment on the conviction and remand McCoy's case to the trial court for resentencing on a single count of robbery with a dangerous weapon.

You Decide 4.4: Sherron v. State, 959 So.2d 30 (Miss.App 2006).

Mississippi law requires a parent to consent in order for a child to have an abortion or else the girl must file a petition in court. Though the law in Alabama where the abortion was procured may be somewhat different, there has been no suggestion that the defendant's agreement was unnecessary. Minors have a constitutional right to abortion, but that right can be restricted in certain ways. This conviction's interpretation of the crime of being an accessory after the fact could be seen as criminalizing the assistance a mother may legally give a daughter to abort a pregnancy, provided she gives that assistance with the intent of hiding a rape. The evidence in the record fully supports that this defendant consistently failed her daughter in responding to the initial incidents of sexual abuse by Xavier Sherron and also in the response to the rape that led to pregnancy. If not for other members of the family, the crime may have remained undetected and, worst horror of all, the abuse may have continued. However, the sole acts for which Sherron was prosecuted were those connected with her giving the assistance that her daughter had to receive from one of her parents if she was to be permitted an abortion without a court order. The question is whether prosecuting a parent for such activity unduly burdens the daughter's recognized constitutional right.

In order to establish that Charlotte Sherron was an accessory after the fact to the statutory rape of Jane, the prosecution had to prove: (1) Xavier Sherron committed a completed felony; (2) Charlotte Sherron concealed, received, relieved, aided or assisted him when she knew he had committed a felony; and (3) Charlotte Sherron rendered such assistance or aid with the intent to enable Xavier Sherron to escape or avoid arrest, trial, conviction or punishment after he committed that felony. Xavier Sherron's felony conviction and twenty-seven year sentence are not disputed. The issues here are the second and third elements of accessory after the fact.

To prove the second element of accessory after the fact, the prosecution had to prove that Charlotte Sherron "concealed, received, relieved, aided or assisted" her husband and that she knew he had committed a felony. Miss. Code Ann. 97-1-5. There are no statutory definitions for the words "conceal," "receive," "aid," or "assist." We therefore construe them according to their common meanings. The word "conceal" means "[t]o hide, secrete, or withhold from the knowledge of others." "Aid" means "[t]o support, help, assist or strengthen." "Assist" means "[t]o contribute effort in the complete accomplishment of an ultimate purpose intended to be effected by those engaged." Finally, "receive" means "[t]o take into possession and control; accept custody of; collect." These commonly understood words support that a defendant is guilty when she acts to prevent discovery and prosecution of a felony.

The evidence supported that Sherron "concealed, received, relieved, aided or assisted" her husband when she took Jane to Tuscaloosa for an abortion. The prosecution alleged that Charlotte Sherron committed these acts with the intent to conceal the fact that Xavier Sherron committed statutory rape. Sherron alleges that those acts were not personal assistance to the husband but to the child. She only "wanted to respect her daughter's wishes and wanted to free her daughter of the burden of raising her stepfather's child." We find these arguments actually involve the issue of intent. The acts themselves suffice under the statutory language. We now turn to intent.

The State had to prove that Sherron intended to enable her husband "to escape or avoid arrest, trial, conviction or punishment" after he committed statutory rape. Whether an accused had a specific intent is a question of fact for the jury. The jury makes its determination based on the facts shown in each case. "Unless one expresses [her] intent, the only method by which intent may be proven is by showing the acts of the person involved at the time in question, and by showing the circumstances surrounding the incident." Sherron argues there is not sufficient evidence that she intended to shield her husband from punishment for statutory rape and her intent was solely to help her daughter. According to the State, a reasonable juror could conclude that regardless of what else she had in mind, Sherron also intended to hide her husband's awful offense. Among the circumstances relevant that the jury had to consider as to intent were these: (a) Sherron did not report her husband's crime; (b) Sherron helped her daughter end a pregnancy caused by statutory rape; and (c) Sherron continued to allow her husband to live with her and her children because they relied on his income. In support of her mother, Jane indicated that Charlotte Sherron was afraid of Xavier Sherron. Jane testified that he was violent with her mother and that she once saw him choke her. Jane also testified that Xavier Sherron once threw a pot of grease against the wall during an argument with her mother. Xavier Sherron also pushed the defendant onto a couch and bit her breasts. Jane testified that, on occasion, he slammed flower pots on the floor and threw figurines at her mother. Jane's grandmother, Ms. Howard, supported in her testimony that the defendant was afraid of her husband.

In the defense view, the intent for the assistance on the abortion was one to aid the minor child. It is further argued that failure to report the statutory rape was solely a function of Xavier Sherron's intimidating nature. However, the defendant admitted to other considerations. Sherron stated, "Uncle Greg, Rosa Mostella and George Sherron told [her] not to tell the police or [Ms. Howard] because [she] would lose [her] kids, and George did not want his brother going to jail." Sherron also explained that she allowed her husband to continue to live with her because she needed his monthly disability check. She also said that she did not report the crime because she did not know how she would pay her bills.

This evidence constitutes circumstantial proof that one of Sherron's intents was to keep the crime of rape from being exposed. In addition, she likely had an intent to keep her young daughter from giving birth to a child who was fathered by rape. Quite simply and logically, the defendant could have operated with mixed purposes when she assisted in her daughter's abortion. This abortion was received in Alabama. For purposes of evaluating the legal effect of the assistance in obtaining an abortion, we nonetheless look to Mississippi law since our legislature, in criminalizing conduct such as being an accessory after-the-fact, must take into account the rights granted under other Mississippi statutes. A minor who has become pregnant due to sexual intercourse with a stepfather has the right to an abortion if her mother alone consents. Absent the parental consent, a court would have had to consider whether to permit the abortion. The rape victim in this case testified that she never had any doubt that she wanted an abortion. The defendant also testified that she did not wish for her daughter to bear a child fathered by rape. There is no argument that there was anything illegal under Mississippi law in Jane's having this abortion.

This mother's assistance on the abortion could well be found to have had two intents behind it, one to support her daughter and the other to support her husband in preventing his crime from being exposed. When an act is done with multiple intents, it may be criminalized if one of the intents is an element of the relevant offense. In a prosecution for a conspiracy illegally to influence a federal election, the defendant alleged that he was more concerned about affecting some of the contests simultaneously being decided for local office:

We find no error in the jury's evaluation of the conflicting evidence of intent and decision that Sherron acted to conceal Xavier Sherron's crime when she took Jane to get an abortion.

You Decide 4.5: Ohio v. Tomaino, 733 N.E.2d 1191 (Ohio App. 1999).

The relevant Ohio law, C.C.2907.31, provides that “no person with knowledge of its character or content, shall recklessly…sell…to a juvenile any material or performance that is obscene or harmful to juveniles.” Ohio argues that Tomaino, the owner of VIP Video, may be held vicariously, criminally liable for the actions of the clerk in selling prohibited material to Mark Frybarger, age seventeen or for failing to supervise the activities of the clerks who sold the videos. The appellate court ruled that the text of the statute did not impose liability on an individual who fails to supervise employees and who fails to take affirmative steps to keep juveniles from entering the store and purchasing videos. It is “undisputed that the clerk furnished the video to the minor and that the appellant was not present.” The Ohio appellate court concluded that “[b]ecause we find that a plain reading of the disseminating matter harmful to juveniles statues requires personal action by a defendant unless the issue of aiding and abetting is submitted, and does not by its term impose vicarious…liability, the jury was not correctly instructed in this case.” There was no personal participation by the accused Tomaino.

CHAPTER FIVE

You Decide 5.1: COMMONWEALTH v. Kerry Van BELL.917 N.E.2d 740 (Sup. Jud. Ct. Mass. 2009)

The defendant was convicted by a jury of offering to engage in 53A, and sexual conduct for a fee (solicitation), G.L. c. 272, § 6.attempted rape of a child, G.L. c. 274, §1 , The defendant appealed from his convictions, and we granted his The defendant now contends application for direct appellate review. that (1) his conviction of attempted rape of a child should be reversed because the Commonwealth presented insufficient evidence to prove that he committed an overt act establishing criminal liability for attempt;  (2) his conviction of solicitation should be reversed because the statute does not criminalize third-party solicitations and is void for vagueness;  (3) his conviction of solicitation was duplicative of his conviction of attempted rape of a child;  (4) the judge erred in instructing the jury that a nod may constitute an affirmative response; For the  and (5) his trial counsel was constitutionally ineffective. reasons that follow, we reverse the defendant's conviction of attempted rape of a child and affirm his conviction of solicitation.

On March 25, 2004, the vice squad of the Worcester police department conducted an investigation and “sting operation”  focused on Officer Patricia Cummings posed undercover as a  prostitute offering her foster child  for sexual services to the defendant.

Cummings was instructed to telephone a specific telephone number, ask for “Ron,” and indicate that she was the foster mother to a young child whom she  would be willing to offer for sexual services in exchange for money. At approximately 10:49 a.m., Cummings telephoned the cellular telephone number, and the defendant answered the telephone, identifying himself as Kerry. She asked for “Ron,” and less than ten seconds later, “Ron” came to the phone Cummings believed “Ron” to be the same person who answered the telephone and identified himself as “Kerry.” Defendant admitted at trial that he pretended to be named “Ron” during this telephone call.

When the defendant came to the telephone, Cummings told him that her girl friend had given her the telephone number Cummings asked if she could  meet him in person, and they agreed to meet later that morning at 11:15 The defendant stated, “We don't have to do this if the kid's not going to be with you,” Cummings told him to postpone the meeting to 11:30 a.m., so that she could arrive with the child.

She drove to the convenience store as agreed upon and waited for the defendant. When she got out of her vehicle, the defendant told her that she did not fulfill the agreement because she did not bring a child with her to the meeting and that she was “making it too hard for him.” Cummings explained that she had never done this before.

Cummings and the defendant then walked to his vehicle, where she asked him for fifty dollars “for good faith.” The defendant refused to pay fifty dollars because she “did not have the kid. The defendant then began to ask for details about Cummings's foster child, including details about her age, demeanor, and sexual history. Cummings answered his questions and told him that she did not want the child to be injured and asked him what he wanted to do. The defendant stated that he wanted “intercourse,” and said that he had done this before.

After these negotiations, the defendant asked where the child was located. She told the defendant that she was on “Elm Street by Elm Park.” She told the defendant that she would drive there and he could follow her. The  defendant agreed, and then they negotiated a fee for the child. Cummings told the defendant that she would not take less than $200. In response to this, the defendant nodded his head up and down.

At that point, Cummings stepped out of the defendant's vehicle and she gave a prearranged signal to officers who were nearby, and they converged on the defendant's vehicle as he began to pull out of his parking spot and turn toward the exit of the parking lot, in the direction of Elm Park.

The officers asked the the defendant to get out of his vehicle, and then arrested him. Worcester police department, the officers found $211 in cash on the defendant. After receiving Miranda warnings and waiving his rights, the defendant discussed his attraction to younger girls with Sergeant Michael Cappabianca, and told him that he “was asking for a young girl and [Officer Cummings] said she had a five year old.” 

The defendant argues that his conviction of attempt should be reversed because the Commonwealth failed to present sufficient evidence of an attempt.  The crime of attempt is statutorily defined in G.L. c. 274, § The elements required for a finding of attempt are (1)  specific intent, (2) an overt act, and (3) nonachievement of the crime. This court has interpreted this statute as requiring a showing that the defendant, after preparing to commit the crime, has undertaken overt acts toward fulfilling the crime that “come near enough to the accomplishment of the substantive offence to punishable.”

We note that many States have adopted the Model Penal Code's formulation for attempt-a less stringent formulation focusing on the actions taken by the defendant toward attaining the substantive offense rather than what the defendant had left to do before reaching the substantive crime. This formulation makes convictions easier to reach.  Of course, “the creation of crimes is not for this court to determine, Our function is merely that of discovering the meaning of the words that the Legislature has used, bearing in mind that under the American system of law a citizen is not to be punished criminally unless his deed falls plainly within the words of the  statutory prohibition, construed naturally.” Any reformulation of the statutory crime of attempt is a matter for the Legislature. In Massachusetts, we look to the actions left to be taken, or the “distance or gap between the defendant's actions and the (unachieved) goal of the consummated crime-the distance must be relatively short, the gap narrow, if the defendant is to be held guilty of a criminal attempt.”

As previously stated, we must determine whether, under the facts of this case, the defendant's actions were merely in preparation to commit the crime or if his actions  constitute the crime of attempt. The defendant met Cummings in the parking lot to arrange to have sex with a young child. He took displeasure that the child was not in the car with Cummings. Cummings and the defendant then negotiated for sex with the child, coming to an agreement that she would provide her four year old foster daughter to him for sexual intercourse in exchange for $200. After reaching an agreement, she told the defendant to follow her to “Elm Street. by Elm Park,” where the child was waiting. The defendant drove his vehicle out of the parking spot, turning in the direction of the exit nearest Elm Park, which was approximately one mile away.

However, even though Cummings and the defendant came to an agreement, he had yet to see a child and did not know the exact location of the child. He had yet to follow Cummings to any type of house or park.

In Commonwealth v. Ortiz, 408 Mass. 463, 464-465, 472, 560 N.E.2d 698 (1990), this court's most recent decision regarding the overt act requirement, we determined that where the defendant got into an automobile with a fully loaded firearm and drove to the neighborhood where a foe lived, circling the block six times in search of the person, and then drove home, there was evidence that the defendant “intended and prepared for an assault and battery by means of a dangerous weapon,” but there was not enough evidence to show an overt act that would render the defendant guilty of attempted homicide. Similarly, in Commonwealth v. Hamel, the Appeals Court found that where the defendant solicited two “hitmen” to commit four murders, made partial payment, described the intended victims, and drew sketches of the home of three of the victims, these preparations did not constitute an overt act within the meaning of the statute that came close enough to the commission of the In each case, the court required that the defendant’s act to be very near to the actual commission of the substantive crime in order to hold the defendant liable Although the evidence in the instant case is  sufficient to show that the defendant intended and prepared for the rape of a child, it is not sufficient to show that he undertook an overt act that put him so near-in time or ability-to the completion of the crime as to be guilty of attempt.

The Commonwealth argues that in addition to the preparations, the defendant's actions in agreeing to follow Cummings and driving his vehicle out of the parking space and into the parking lot facing the exit nearest to Elm Park are sufficient overt acts for the jury to find him guilty of attempted rape. The defendant was not proximate enough to committing rape of a child to find him guilty of attempt, its commission was still far from certain. He was more than a mile from a vague location-“Elm Street, by Elm Park” and he had not paid any money to Cummings, and the defendant did not know where exactly the child was located, as no evidence was presented that he knew where “Elm Street, by Elm” was located.

Because the defendant's conviction of attempted rape rests on  insufficient evidence, we are confronted by circumstances that represent a substantial risk of a miscarriage of justice. Accordingly, the defendant's conviction of attempted rape of a  child is overturned.

You Decide 5.2: United States v. Duran, 96 F.3d 1495 (D.C.App. 1996).

An attempt to kill the President of the United States is punishable by a term of years or by life imprisonment. Duran argues that his conviction should be reversed because he shot at Dennis Basso rather than at President Bill Clinton.

The federal courts follow the Model Penal Code in requiring a purpose to commit a crime together with a “substantial step in a course of conduct planned to culminate in…[the] commission of the crime.” Duran expressed his strong desire to kill the President on numerous occasions and purchased a rifle, ammunition and a coat large enough to conceal the rifle. He traveled to Washington D.C. and stood outside the White House with a rifle and ammunition. There was sufficient evidence for a jury to conclude that Duran’s possessed a purpose to assassinate President Clinton and that he had taken substantial steps towards this purpose. The federal court concluded that Duran had already completed the crime of attempted assassination of President Clinton before he began firing at Dennis Basso. The identity of Duran’s target is “irrelevant, given the overwhelming evidence that…he engaged in numerous ‘substantial steps’ towards his objective of assassinating the President.”

Basso strongly resembled President Clinton and Duran’s attack strongly corroborated his intent to assassinate the President. The court avoided confronting whether the fact that Duran fired at Basso meant that Duran did not have the intent to assassinate the President and failed to take a step in furtherance of this objective.

You Decide 5.3: Ross v. State, 601 So. 2d 872 (Miss. 1992), Opinion by: Prather, J.

This attempted-rape case arose on the appeal of Sammy Joe Ross from the ten-year sentence imposed on July 7, 1988, by the Circuit Court of Union County. . . .

Facts

Dorothy Henley and her seven-year-old daughter lived in a trailer on a gravel road. Henley was alone at home and answered a knock at the door to find Sammy Joe Ross asking directions. Henley had never seen Ross before. She stepped out of the house and pointed out the house of a neighbor who might be able help him. When she turned back around, Ross pointed a handgun at her. He ordered her into the house, told her to undress, and shoved her onto the couch. Three or four times Ross ordered Henley to undress and once threatened to kill her. Henley described herself as frightened and crying. She attempted to escape from Ross and told him that her daughter would be home from school at any time. She testified that,

I started crying and talking about my daughter, that I was all she had because her daddy was dead, and he said if I had a little girl he wouldn’t do anything, for me just to go outside and turn my back.

As instructed by Ross, Henley walked outside behind her trailer. Ross followed and told her to keep her back to the road until he had departed. She complied.

Henley was able to observe Ross in her sunlit trailer with the door open for at least five minutes. She stated that she had an opportunity to look at him and remember his physical appearance and clothing. Henley also described Ross’s pickup truck, including its color, make, and the equipment—that is, a toolbox.

On December 21, 1987, a Union County grand jury indicted Sammy Joe Ross for the attempted rape of Henley, charging that Ross “did unlawfully and feloniously attempt to rape and forcibly ravish” the complaining witness, an adult female. . . . On June 23, 1988, the jury found Ross guilty. On July seventh, the court sentenced Ross to a ten-year term. . . . Ross timely filed a notice of appeal.

Issue

The primary issue here is whether sufficient evidence presents a question of fact as to whether Ross abandoned his attack as a result of outside intervention. Ross claims that the case should have gone to the jury only on a simple assault determination. Ross asserts that “it was not . . . Henley’s resistance that prevented her rape nor any independent intervening cause or third person, but the voluntary and independent decision by her assailant to abandon his attack.” The State, on the other hand, claims that Ross “panicked” and “drove away hastily.”

Reasoning

Henley told Ross that her daughter would soon be home from school. She also testified that Ross stated if Henley had a little girl, he wouldn’t do anything to her and to go outside [the house] and turn her back [to him].

The trial court instructed the jury that if it found that Ross did “any overt act with the intent to have unlawful sexual relations with [the complainant] without her consent and against her will,” then the jury should find Ross guilty of attempted rape. The court further instructed the jury that before you can return a verdict against the defendant for attempted rape, that you must be convinced from the evidence and beyond a reasonable doubt “that the defendant was prevented from completing the act of rape or failed to complete the act of rape by intervening, extraneous causes. If you find that the act of rape was not completed due to a voluntary stopping short of the act, then you must find the defendant not guilty.”

This court has held that lewd (indecent) suggestions coupled with physical force constituted sufficient evidence to establish intent to rape. . . . Attempt consists of “1) an intent to commit a particular crime; 2) a direct ineffectual act done toward its commission, and 3) failure to consummate its commission.” The Mississippi attempt statute requires that the third element, failure to consummate, result from extraneous causes. . . . Where the assailant released his throat-hold on the unresisting victim and told her she could go, after which a third party happened on the scene, this court has held that the jury could not have reasonably ruled out abandonment. In comparison, this court has held that where the appellant’s rape attempt failed because of the victim’s resistance and ability to sound the alarm, the appellant cannot establish an abandonment defense. In another case, the defendant did not voluntarily abandon his attempt but instead fled after the victim, a hospital patient, pressed the nurse’s buzzer; a nurse responded and the victim spoke the word “help.” The court concluded, “The appellant ceased his actions only after the victim managed to press the buzzer alerting the nurse.” . . . In another case, the court properly sent the issue of attempt to the jury where the attacker failed because the victim resisted and freed herself.

Thus, abandonment occurs where, with no physical resistance or external intervention, the perpetrator changes his mind. At the other end of the scale, a perpetrator cannot claim that he abandoned his attempt when, in fact, he ceased his efforts because the victim or a third party intervened or prevented him from furthering the attempt. Somewhere in the middle lies a case . . . where the victim successfully sounded an alarm, presenting no immediate physical obstacle to the perpetrator’s continuing the attack, but sufficiently intervening to cause the perpetrator to cease his attack.

The key inquiry is a subjective one: What made Ross leave? According to the undisputed evidence, he left because he responded sympathetically to the victim’s statement that she had a little girl. He did not fail in his attack. No one prevented him from completing it. Henley did not sound an alarm. She successfully persuaded Ross, of his own free will, to abandon his attempt. No evidence shows that Ross panicked and hastily drove away, but rather, the record shows that he walked the complainant out to the back of her trailer before he left. Thus . . . this is not to say that Ross committed no criminal act, but “our only inquiry is whether there was sufficient evidence to support a jury finding that [Ross] did not abandon his attempt to rape.”

Holding

Ross raises a legitimate issue of error in the sufficiency of the evidence supporting his conviction for attempted rape because he voluntarily abandoned the attempt. This court reverses. . . .

You Decide 5.4: People v. Saephanh, 80 Cal.App.4th 451

A single-count information filed on August 12, 1998, in Kings County Superior Court charged appellant Lou Tong Saephanh with solicitation of murder in violation of Penal Code 1 section 653f, subdivision, On October 7, 1998, after a two-day jury trial, appellant's motion for acquittal …as denied, and appellant was subsequently found guilty.

In October and November 1997, appellant had consensual sexual intercourse with Cassandra Y. Cassandra became pregnant and, in January 1998 while appellant was in prison, she informed appellant of her pregnancy. Appellant first asked if the baby was his and, when told it was, exclaimed, "'Oh, I've been wanting a baby for a long time.'" Cassandra and appellant spoke about the baby every week and appellant was excited.

In May 1998, while still incarcerated, appellant wrote a letter dated May 22, 1998, to his friend and fellow gang member Cheng Saechao, also known as O. Dee. In pertinent part, it stated, "By the way loc, could you & the homies do me a big favor & take care that white bitch, Cassie for me. ha, ha, ha!! Cuzz, it's too late to have abortion so I think a miss carrage would do just fine. I aint fista pay child sport for this bull-shit loc. You think you can get the homies or home girls do that for me before she have the baby on Aug. '98." At the time he wrote the letter, appellant was upset. He did not want to pay child support.

Vicki Lawrence, a correctional officer at Corcoran State Prison working for the investigative service unit, testified that when an indigent inmate wishes to send a letter, he puts it into a night drop for processing through the mail room where the letter is stamped for delivery. Lawrence found the letter in her "in box." The investigative unit reviews inmate correspondence placed in the institution's mail system. According to Lawrence, she opened and read the letter appellant had written. She immediately notified her supervisor, Sergeant Basinger. The letter was thus intercepted by the institution's internal investigative unit and never reached the addressee.

Rick Bellar, an investigator with the Kings County District Attorney's Office, read a copy of the letter that Basinger provided him and thereafter interviewed Cassandra, Cheng Saechao and appellant. Bellar interviewed appellant on June 2, 1998, at Corcoran State Prison. Appellant admitted writing the letter and that he was serious when he wrote it. Appellant told Bellar that when he wrote the letter, he was thinking that if Cassandra did not let him be a part of the baby's life, he wanted to "get rid of the baby." Appellant did not want to pay child support. Appellant was angry because Cassandra did not seem to love him, and there was an argument in which Cassandra told appellant he could not see the baby. Appellant expected Saechao and other gang members to punch Cassandra in the stomach during a fight or have her fall, thereby causing a miscarriage.

Appellant told Bellar he later called Saechao and told him to ignore the letter, but Saechao did not know what letter appellant was talking about.

Appellant contends there is insufficient evidence to support his conviction for solicitation of murder because the evidence establishes that the soliciting communication was not received by the intended recipient and, in fact, establishes no one was solicited. He asserts that California's solicitation statute, section 653f, 2 requires proof of a completed communication. He suggests a "completed communication" occurs only when the intended recipient of the communication receives it.

Section 653F (subdivision b provides: “Every person who, with the intent that the crime be committed, solicits another to commit or join in the commission of murder shall be punished by imprisonment in the state prison for three, six, or nine years.”

Appellant acknowledges no published California case has so held and notes the issue is one of first impression in California. According to appellant, however, "two other states which have considered the issue under solicitation statutes similar to [California's section 653f], Oregon and New Mexico," concluded solicitation requires a "completed communication," i.e. one which was received by the intended recipient. He contends these authorities should be applied in California.

In State v. Cotton (1990) 109 N.M. 769 [790 P.2d 1050], the defendant was convicted of two counts of criminal solicitation. While he was incarcerated in New Mexico, he wrote two letters to his wife in Indiana suggesting that she warn their daughter not to testify against defendant on molestation charges and that she persuade their daughter to leave New Mexico and go to Indiana. Neither letter ever reached defendant's wife, both having landed in the hands of law enforcement. On appeal, the defendant claimed insufficient evidence to support the solicitation convictions because the letters never reached the intended recipient, the defendant's wife.

The New Mexico Court of Appeal agreed. First, it noted that New Mexico's criminal solicitation statute "adopts in part, language defining the crime of solicitation as set out in the Model Penal Code promulgated by the American Law Institute." The court distinguished New Mexico's statute from the Model Penal Code, noting that New Mexico's solicitation statute "specifically omits that portion of the Model Penal Code subsection declaring that an uncommunicated solicitation to commit a crime may constitute the offense of criminal solicitation. The latter omission, we conclude, indicates an implicit legislative intent that the offense of solicitation requires some form of actual communication from the defendant to either an intermediary or the person intended to be solicited, indicating the subject matter of the solicitation." Thus, by adopting in part the Model Penal Code section defining solicitation but omitting language from that section criminalizing uncommunicated solicitations, the New Mexico Legislature intended that the New Mexico statute not criminalize uncommunicated solicitations.

In State v. Lee (1991) 105 Or. App. 329 [804 P.2d 1208], the Oregon Court of Appeal reached a similar result. There, the defendant, while in jail, wrote letters to an acquaintance in a juvenile center outlining plans to rob a store and residence. Authorities in the juvenile center intercepted the letters, which never reached the intended recipient. The defendant was convicted of solicitation to commit robbery. On appeal, he argued lack of evidence to sustain the conviction because the letters were never received by the intended recipient.

Citing Cotton and apparently following its reasoning, the Oregon court noted Oregon's criminal solicitation statute 4 "was based, in part, on the Model Penal Code.." As did the court in Cotton, the Lee court noted the omission of Model Penal Code language criminalizing uncommunicated solicitations in Oregon's criminal solicitation statute. "Significantly, the legislature did not adopt the provision of the Model Penal Code that specifically provides that solicitation may be based on an incomplete communication." The court concluded a completed communication is required to prove the crime of solicitation. The court determined attempted solicitation is a necessarily included offense of solicitation and remanded for entry of judgment of conviction on that crime.

Respondent agrees no California authority has directly addressed the issue of whether one may be found guilty of solicitation where the intended recipient of the soliciting communication never received the message. Respondent notes there is a split in authorities from other jurisdictions addressing the issue.

In People v. Lubow (1971) 29 N.Y.2d 58 [323 N.Y.S.2d 829, 272 N.E.2d 331], cited by respondent, the New York court concluded that state's criminal solicitation statute included in the crime uncommunicated solicitations. The court noted the New York statute indicated one is guilty of solicitation if, with the intent another engage in criminal conduct, the defendant "'solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.'" The court noted New York's statute stems from the Model Penal Code. The court pointed to that portion of the New York statute stating one is guilty of solicitation if he solicits another to engage in criminal conduct, " 'or otherwise attempts to cause' " such conduct. The court found "[t]his has the same effect as the Model Penal Code . . . ." The court held, "[A]n attempt at communication which fails to reach the other person may also constitute the offense for the concluding clause 'or otherwise attempts to cause such other person to engage in such conduct' would seem literally to embrace as an attempt an undelivered letter or message initiated with the necessary intent." Thus, the New York court reached a different conclusion as to the meaning of the "otherwise attempts" language in the New York statute than did the Cotton court as to the meaning of identical language in the New Mexico statute.

Does California's section 653f include in its ambit solicitations not received by the intended recipient? Cotton and Lee concluded the New Mexico and Oregon Legislatures intended their solicitation statutes to require a solicitation be received by the intended recipient for criminal liability to attach on the basis of the omission from their statutes of language contained in the Model Penal Code on which those statutes are based. Section 653f, enacted in 1929, is not based on the Model Penal Code. Thus, we disagree with appellant that Cotton and Lee examined "solicitation statutes similar to California's Penal Code section 653f," at least in terms of legislative history and intent. We find Cotton and Lee unpersuasive on the issue of whether section 653f criminalizes the making of soliciting communications not received by the intended recipient.

Likewise, Lubow provides no guidance on the issue because in that case the court noted New York's solicitation statute stems from the Model Penal Code. The court found that the "or otherwise attempts" language in the statute was akin to subsection 2 of Model Penal Code section 5.02. Section 653f, not derived from the Model Penal Code, does not contain attempt language.

As have the parties, we have located no California case squarely addressing the question of whether the intended recipient of a solicitation must receive the solicitation for liability to attach under section 653f.

As noted, section 653f, subdivision (b) provides: "Every person who, with the intent that the crime be committed, solicits another to commit or join in the commission of murder shall be punished by imprisonment . . . ."

The plain language of section 653f, in particular the phrase "solicits another," demonstrates that proof the defendant's soliciting message was received by an intended recipient is required for liability to attach. The facts of this case are illustrative of the plain meaning of the statute. Here, appellant intended to ask Saechao and the "homies or home girls" to kill Cassandra's fetus. However, neither Saechao nor the "homies or home girls" ever received the soliciting message. Thus, appellant did not solicit Saechao or the specifically designated others.

Respondent nonetheless contends the harm is in the asking and suggests the crime of solicitation was complete when appellant "deposited the correspondence with the requisite criminal intent." According to respondent, solicitation has two elements, a request to do a crime and intent that it be completed. Thus, respondent asserts, "appellant's letter was the murder request and, when he dropped it off to be mailed, he possessed the requisite criminal intent, thus satisfying both the elements to criminal solicitation."

We disagree that the letter, never received by any person appellant intended to solicit, in itself constitutes a "request" as that term may be applied in interpreting section 653f. Evidence appellant wrote the letter to Saechao is insufficient to show appellant actually requested Saechao, or the "homies or home girls" commit murder, in the absence of evidence any one of them received the letter. This is so even though appellant posted the letter. The crime of solicitation defined by section 653f requires that two or more persons must be involved, at least one being necessarily a solicitor and the other necessarily being the person solicited.

We agree with appellant that solicitation requires a completed communication.

Respondent insists that even if solicitation requires a completed communication, Vicki Lawrence, the correctional officer, received the letter. In our view, this argument evades the issue of whether appellant "solicited another." Appellant did not ask Vicki Lawrence to kill anyone, or do anything for that matter. She was not a person solicited.

Section 653f has the twofold purpose of protecting the inhabitants of California from being exposed to inducement to commit or join in the commission of crimes and preventing solicitations from resulting in the commission of the crimes solicited. Uncommunicated soliciting messages do not expose others to inducements to commit crimes. Nor is there a likelihood that an uncommunicated message would result in the commission of crimes. Thus, letters posted but not delivered do not give rise to the dangers from which section 653f seeks to protect society.

However, messages urging commission of a crime which are received expose individuals to invitation to crime and create a risk of criminal activity. Criminalizing completed solicitations furthers the policies of protecting individuals from exposure to inducements to commit crimes and preventing commission of the crimes solicited. Thus, a conviction for a violation of section 653f requires proof that the person solicited received the soliciting communication. One cannot "solicit another" without a completed communication. The communication is only completed when it is received by its intended recipient.

Appellant did not ask Vicki Lawrence to kill Cassandra's fetus and appellant was unsuccessful in asking Saechao (or, for that matter, the "homies or home girls") to do so because his letter was intercepted. Appellant did not "solicit another" to commit murder within the meaning of section 653f, subdivision (b). Thus, his conviction for solicitation of murder cannot stand.

CHAPTER SIX

You Decide 6. 1: State v. Armstrong, 671 So.2d 307 (La. 1996).

The defendant is required to establish that he suffered a mental disease or defect which prevented him from distinguishing between right and wrong. In reversing the jury’s determination that Armstrong was legally sane, the Louisiana Supreme Court stressed that Armstrong lay in wait for the “anti-Christ,” Reverend Neal, to arrive at the mortuary and that Armstrong did not direct violence at other individuals, whom he had not been commanded to kill. The Supreme Court also observed that Armstrong did not seem concerned about the police, who testified that he appeared to be non-communicative and in a trance. He decapitated the body and displayed the severed head in front of the police and casually walked out of the building. This was viewed by the Supreme Court as indicative of the fact that Armstrong had no sense that he was acting in a “wrongful” fashion. He was grossly psychotic when not medicated and had been scheduled for an injection the day of the killing. This psychotic state typically resulted in an obsession with religious matters and good and evil.

You Decide 6.2: STATE V. K.R.L. 840 P.2d 210 (1992, Wn. App.)

In July 1990, K.R.L., who was then 8 years 2 months old, was playing with a friend behind a business building in Sequim. Catherine Alder, who lived near the business, heard the boys playing and she instructed them to leave because she believed the area was dangerous. Alder said that K.R.L.'s response was belligerent, the child indicating that he would leave "in a minute." Losing patience with the boys, Alder said "[n]o, not in a minute, now, get out of there now." The boys then ran off.

Three days later, during daylight hours, K.R.L. entered Alder's home without her permission. He proceeded to pull a live goldfish from her fishbowl, chopped it into several pieces with a steak knife and "smeared it all over the counter." He then went into Alder's bathroom and clamped a "plugged in" hair curling iron onto a towel.

Upon discovering what had taken place, Alder called the Sequim police on the telephone and reported the incident. A Sequim police officer contacted K.R.L.'s mother and told her that he suspected that K.R.L. was the perpetrator of the offense against Alder. K.R.L.'s mother confronted the child with the accusation and he admitted to her that he had entered the house. She then took K.R.L. to the Sequim Police Department where the child was advised of his constitutional rights by a Sequim police officer. This took place in the presence of K.R.L.'s mother who indicated that she did not believe "he really understood. " K.R.L. told the police officer that he knew it was wrong to enter Alder's home. 1

K.R.L. was charged in Clallam County Juvenile Court with residential burglary, a class B felony. At trial, considerable testimony was devoted to the issue of whether K.R.L. possessed sufficient capacity to commit that crime. The juvenile court judge heard testimony in that regard from K.R.L.'s mother, Catherine Alder, two school officials, a Sequim policeman who had dealt with K.R.L. on two prior occasions as well as the incident leading to the charge, one of K.R.L.'s neighbors and the neighbor's son.

K.R.L.'s mother, the neighbor, the neighbor's son and the police officer testified to an incident that had occurred several months before the alleged residential burglary. This incident was referred to by the police officer as the "Easter candy episode". Their testimony revealed that K.R.L. had taken some Easter candy from a neighbor's house without permission. As a consequence, the Sequim police were called to investigate. K.R.L. responded to a question by the investigating officer, saying to him that he "knew it was wrong and he wouldn't like it if somebody took his candy." The same officer testified to another incident involving K.R.L. This was described as the "joyriding incident", and it occurred prior to the "Easter candy episode". It involved K.R.L. riding the bicycles of two neighbor children without having their permission to do so. K.R.L. told the police officer that he "knew it was wrong" to ride the bicycles.

The assistant principal of K.R.L.'s elementary school testified about K.R.L.'s development. He said that K.R.L. was of "very normal" intelligence. K.R.L.'s first grade teacher said that K.R.L. had "some difficulty" in school. He said that he would put K.R.L. in the "lower age academically."

K.R.L.'s mother testified at some length about her son and, in particular, about the admissions he made to her regarding his entry into Alder's home. Speaking of that incident, she said that he admitted to her that what he did was wrong "after I beat him with a belt, black and blue." She also said that her son told her "that the Devil was making him do bad things."

The juvenile court rejected the argument of K.R.L.'s counsel that the State had not presented sufficient evidence to show that K.R.L. was capable of committing a crime. It found him guilty, saying:

[F]rom my experience in my eight, nine years on the bench, it's my belief that the so-called juvenile criminal system is a paper tiger and it's not going to be much of a threat to Mr. [K.R.L.], so I don't think that for that reason there is a whole lot to protect him from.

There is only one issue -- did the trial court err in concluding that K.R.L. had the capacity to commit the crime of residential burglary? 2 RCW 9A.04.050 speaks to the capability of children to commit crimes and, in pertinent part, provides:

Children under the age of eight years are incapable of committing crime. Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong.

This statute applies in juvenile proceedings.

Because K.R.L. was 8 years old at the time he is alleged to have committed residential burglary, he was presumed incapable of committing that offense. The burden was, therefore, on the State to overcome that presumption and that burden could only be removed by evidence that was "clear and convincing". Thus, on review we must determine if there is evidence from which a rational trier of fact could find capacity by clear and convincing evidence.

There are no reported cases in Washington dealing with the capacity of 8-year-old children to commit crimes. That is not too surprising in light of the fact that up to age 8, children are deemed incapable of committing crimes. Two cases involving older children are, however, instructional. Our Supreme Court looked at a case involving a child who was charged with committing indecent liberties. In concluding that there was clear and convincing circumstantial evidence that the child understood the act of indecent liberties and knew it to be wrong, the court stressed the fact that the child was only 3 months shy of age 12, the age at which capacity is presumed to exist,. State v. Q.D., 102 Wn.2d at 27. The court also placed stock in the fact that the defendant used stealth in committing the offense as well as the fact that she had admonished the victim, a 4 1/2-year-old child whom she had been babysitting, not to tell what happened.

In another case, State v. S.P., 746 P.2d 813 (1987), rev'd on other grounds, 110 Wn.2d 886, 756 P.2d 1315 (1988), Division One of this court upheld a trial judge's finding that a child, S.P., had sufficient capacity to commit the crime of indecent liberties. In so ruling, the court noted that (1) S.P. was 10 years of age at the time of the alleged acts; (2) S.P. had had sexual contact with two younger boys during the prior year; (3) in treatment for the earlier incident, S.P. acknowledged that sexual behavior was wrong; (4) S.P. was aware that if convicted on the present charge, detention could result; and (5) experts concluded that S.P. had an extensive knowledge of sexual terms and understood the wrongfulness of his conduct toward the victims.

None of the factors that the courts highlighted in the two aforementioned cases is present here. Most notably, K.R.L. is considerably younger than either of the children in the other two cases. In addition, we know almost nothing about what occurred when K.R.L. went into Alder's home. Furthermore, there was no showing that he used "stealth" in entering Alder's home. We know only that he entered her home in daylight hours and that while he was there he committed the act. Neither was there any showing that K.R.L. had been previously treated for his behavior, as was the case in State v. S.P., supra.

The State emphasizes the fact that K.R.L. appeared to appreciate that what he did at Alder's home and on prior occasions was wrong. When K.R.L. was being beaten "black and blue" by his mother, he undoubtedly came to the realization that what he had done was wrong. We are certain that this conditioned the child, after the fact, to know that what he did was wrong. That is a far different thing than one appreciating the quality of his or her acts at the time the act is being committed.

In arguing that it met its burden, the State placed great reliance on the fact that K.R.L. had exhibited bad conduct several months before during the so-called "Easter candy" and "joyriding" incidents. Again, we do not know much about these incidents, but it seems clear that neither of them involved serious misconduct and they shed little light on whether this child understood the elements of the act of burglary or knew that it was wrong.

In State v. Q.D., our Supreme Court emphasized that a capacity determination must be made in reference to the specific act charged. If the State shows no more than a general understanding of the justice system, the State does not meet its burden of showing an understanding of the act and knowledge that it was wrong. Indeed, the court indicated that an understanding of the wrongfulness of one crime does not alone establish capacity in regard to another crime.

Here, we have a child of very tender years -- only two months over 8 years. While the State made a valiant effort to show prior bad acts on the part of the child, an objective observer would have to conclude that these were examples of behavior not uncommon to many young children. Furthermore, there was no expert testimony in this case from a psychologist or other expert who told the court anything about the ability of K.R.L. to know and appreciate the gravity of his conduct. Although two school officials testified, one of them said K.R.L. was of an age lower than 8, "academically". In short, there is simply not enough here so that we can say that in light of the State's significant burden, there is sufficient evidence to support a finding of capacity.

You Decide 6.3: State v. Ducheneaux, 671 N.W.2d 841 (S.D. 2003).

Matthew Ducheneaux argues that he can predict when an attack or spasm is imminent and that a jury could reasonably find that his fear of an attack is reasonable. He further contended that his concern over the impact of traditional treatments also constitutes a fear of imminent harm. Ducheneaux contends that a jury could reasonably find that he had done everything within his power to control his condition and that smoking marijuana was his only alternative.

The South Dakota Supreme Court ruled that Matthew Ducheneaux did not satisfy the statutory standard that required that he engaged in the crime because of the “use or threatened use of unlawful force upon him.” The only force threatened or used against Matthew was his medical condition. The statute clearly implies force or threat of force by another person. The court concluded that it would be a “strained interpretation of the statutory language to rule that a medical condition can exert unlawful force against a person.

The Supreme Court also held that Ducheneaux failed to demonstrate that he was unable to resist the force. His belief that he his alternative treatments containing Marinol (the legal form of THC) and valium were not as effective as marijuana is an “insufficient justification for choosing an illegal remedy.” The legislature has passed a statute that provides criminal penalties for the knowing possession of marijuana. This language precludes the defense of necessity. The South Dakota legislature has decided against creating a provision for a medical necessity for marijuana on two occasions.

You Decide 6.4: State v. Carradine, 287 N.E.2d 670 ( Ill. 1972).

The Supreme Court of Illinois rejected the defense of duress, despite the “distressing circumstances” of this case. The Supreme Court cited the statement by the trial court that “unless we receive the cooperation of the citizens who see certain alleged events take place these events are not going to be rooted out, nor are perpetrators of these acts going to be brought before the bar of justice unless citizens stand up to be counted, and I think this [fear] is not a valid reason for not testifying. If it's a valid reason then we might as well close the doors."

You Decide 6.5: MILLER V. STATE, 312 S.W.3d 209 (Tex.App. 2010)

Issue

A jury convicted George Miller of assaulting his son, Givens Miller. The jury sentenced him to one day in jail, probated for thirty days. On appeal, George contends the trial court erred in denying his request for a jury instruction on the defense of consent.

Facts

Givens, an eighteen-year-old, 210-pound football player, had a disagreement with his parents after one of his high-school football games. During the disagreement, George took away Givens's cell phone and car keys. Thereafter, Givens repeatedly shouted expletives at his parents, such as "take your G.D. money and 'f' yourself with it." He then blowed up in close proximity to George and, in a threatening tone, taunted him, saying "What the 'f,' man. I'm going to--you going to hit me, man? Are you going to hit me? What the 'f,' man."

George replied, "No, I'm not going to hit you," and shoved Givens away from him. At this point, Givens kicked and punched George in his side, and then, as Givens charged him, George punched Givens in the face. George threw two more punches, and the altercation ended.

After noticing Givens was bleeding from the mouth with several teeth loosened, George placed him in the car with his mother and asked her to take him to the hospital. George, a doctor, left to perform surgery at a different hospital. The police pulled Givens and his mother over on a routine traffic stop while they were on route. The police inquired about the son's condition, and Givens told them he had been struck by his father. The officers called E.M.S., and E.M.S. personnel drove Givens the remaining distance to the hospital. After investigation, George was charged with the misdemeanor offense of assaulting a family member.

At trial, Givens testified that at the time of the incident he "was all jazzed up" from the game and "in an aggressive mood." He acknowledged that his tone and conduct was threatening, and he testified that he "kind of wanted to hit [George]" and he "kind of wanted [George] to hit [him]." When he described the altercation, he testified that they "were . . . fighting" and the punches were thrown "in the heat of combat."

At the close of evidence, George objected to the jury charge because the court did not include an instruction on the defense of consent. The court denied his request for a consent instruction and overruled his objection. The jury convicted and sentenced him to one day in jail, probated for thirty days.

Reasoning

The victim's effective consent or the actor's reasonable belief the victim consented to the actor's conduct is a defense to assault if the conduct did not threaten or inflict serious bodily injury. An accused has the right to an instruction on any defense raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court thinks about the credibility of the evidence. This rule was designed to ensure that the jury, not the judge, decides the credibility of the evidence.

When considering whether a consent instruction was warranted, we are concerned only with whether the evidence supports the defense of consent, not whether the evidence is believable. If the evidence, viewed in a light favorable to the appellant, supports the defense of consent, then an instruction is required.

The State urges us to follow Allen v. State, 253 S.W.3d 260 (Tex. Crim. App. 2008). In Allen, the complainant taunted the defendant by stating, "'go ahead,' 'come on,' 'slap me,' 'hit me.'" There the court stated, "[c]ommon experience tells us that such apparent bravado . . . in the face of an expressed threat does not normally communicate a genuine desire to be assaulted; it far more likely constitutes a backhanded warning of potentially dire consequences to the threatener should she actually carry out her threat." However, the State fails to note that the Allen court ultimately concluded that the underlying facts were adequate to raise a fact issue relative to consent and require submission of the issue to the jury. There, the circumstances did not require reversal only because the defendant's counsel failed to preserve error.

Here, the evidence indicates Givens may have genuinely desired to provoke his father to hit him. Givens's testimony that he "kind of wanted [George] to hit [him]" gives life to the argument that the fight was consensual. Additionally, Givens did more than threaten George; he struck the first blow. It is important to note that Givens was aggressively moving towards George when George finally hit Givens. Furthermore, Givens described the altercation with phrases indicative of mutual combat, not assault. He testified that he "was all jazzed up" and "in an aggressive mood" and that when George hit him, they were "in the heat of combat" and "still fighting."

The defense of consent is not available when the defendant threatens or inflicts "serious bodily injury." Serious bodily injury is "injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function" of a bodily organ.

Texas courts have not been consistent as to what specific facts constitute serious bodily injury. Whether an injury constitutes serious bodily injury is determined on a case-by-case basis. When deciding whether the injury rises to the level of serious bodily injury, we consider the extent of injury at the time it was inflicted, not after the effects have been ameliorated or exacerbated by medical treatment.

Here, Givens suffered dental fractures and loose teeth, but he lost no teeth. He also received two blows to the head, and he testified that he may have lost consciousness for a brief moment. However, he did not sustain memory loss. The emergency physician who treated Givens testified that a black-out could be the result of many things, including shock or surprise. He also testified no damage appeared on Givens's CAT scan. Nevertheless, the doctor testified that, because Givens lost consciousness, he likely suffered a mild concussion.

Some courts have concluded, on a case-by-case basis, that loss of teeth is a serious bodily injury in cases with and without other injuries to date, courts have concluded that the loosening of teeth is a serious bodily injury only when accompanied by other serious injuries. For example, in a recent case the defendant struck complainant with an axe, crushed his nose flat, knocked four teeth loose, and pulled ears with pliers leaving a one and one-half inch incision behind ear. In another case there was profuse bleeding, misalignment of teeth, inability to breath normally, and fractured jawbone, cheekbone, orbital bones, and nasal bones.

Blows to the head, depending on the strength and repetitiveness of the blows, can, but do not always, constitute serious bodily injury. Some courts have held that memory loss is sufficient to constitute serious bodily injury, while others have not.

Here, Givens's teeth were loosened, but not lost, and he may have had a mild concussion. The State did not specifically contend below that Givens's injuries constituted "serious bodily injury." Even had it done so, in light of current precedent, the question still would be a question of fact for the jury to decide.

Viewing the evidence in a light favorable to George, we hold an instruction on the defense of consent was required. . Whether Givens actually consented was a question of fact for the jury. d. Accordingly, the trial court erred in overruling George's objection and denying his request for an instruction on consent.

Holding

To resolve whether George suffered harm, we consider the plausibility of the evidence raising the defense. Here, under these very unusual circumstances, a reasonable factfinder might conclude that Givens consented to the fight, or that George reasonably believed he consented. Whether Givens actually consented, of course, is a question of fact for the jury.. Therefore, we conclude that failure to include the instruction on consent was harmful error, and we sustain Appellant's sole issue on appeal. …[W]e reverse and remand this cause to the trial court for further proceedings consistent with this opinion.

You Decide 6.6: Staley v. State, 89 Neb. 701 (Neb. 1911).

The Nebraska Supreme Court affirmed the defendant’s conviction of bigamy. The court stressed that “[a]fter becoming the husband of his cousin, his obligations to her, to his unborn child, and to society required care and diligence on his part before leaving his wife and marrying again without a divorce. He knew it was at least doubtful whether the marriage was void. Otherwise he would not have asked the advice of counsel.”

The deputy county attorney may offer advice, but the question whether a marriage is valid is a matter for the judiciary. Based on this advice that his marriage was invalid, Staley was “willing to abandon his wife as an adulteress and leave her with the prospect that she would become the mother of a bastard child. The obligations of an individual who has voluntarily entered into the marriage relationship require a greater degree of care than that exercised by defendant. He acted on the advice of counsel at his peril, and under the law it is no defense in this case.”

You Decide 6.7: Commonwealth v. Shaffer, 326 N.E.2d 880 (Mass. 1975).

Massachusetts is one of the few states that requires a duty to retreat before resorting to deadly force, even in the home. There is no duty to retreat where withdrawal would place an individual in danger by withdrawing. An individual only need retreat until there is “no probable means of escape.

In this case, the jury could have determined that the defendant was not in imminent danger for her life or in danger of serious injury. The assailant did not have a dangerous weapon and was only two or three steps from the top of the stairs when shot. A reasonable person could not believed that the deceased presented a threat of death or serious physical injury.

The court held that Shaffer had time to call the police and could have left the basement with her children. She also did not warn the victim that she would shoot in the event that he continued down the stairs. There also was evidence that the defendant had experience in the use of the rifle and was able to kill the victim with a single shot.

You Decide 6.8: Miller v. State, 110 P.3d 53 (Nev. 2005). Per Curiam.

Issue

This appeal arises out of an undercover decoy program initiated by the Las Vegas Metropolitan Police Department (LVMPD). The decoy program was designed to combat an increase in street-level robberies occurring in downtown Las Vegas. A street-level robbery is a person-to-person crime where one person walks up to another and either robs that person or picks his or her pocket.

Facts

As part of the decoy operation, Detective Jason Leavitt disguised himself as an intoxicated vagrant to blend in with transient persons who reside in certain areas of Las Vegas. Detective Leavitt carried twenty one-dollar bills in a pocket and left a small portion of the bills exposed. This allowed someone standing close to him to see the money, but the bills were hidden well enough that they did not attract the attention of every passerby. Detective Leavitt wore a monitoring device that allowed surveillance and arrest teams to hear what Detective Leavitt heard and said. When Detective Leavitt gave a predetermined signal, arrest teams would approach the scene and apprehend the suspect.

On July 29, 2003, Detective Leavitt was dressed in black jeans, a dirty t-shirt, a short-sleeved flannel shirt, and a baseball cap. Twenty one-dollar bills were folded inside the breast pocket of the flannel shirt so that only the tips of the bills were exposed. Detective Leavitt rubbed charcoal on his face to appear dirty and wiped beer on his neck to give off the odor of alcohol. He also walked with a limp and carried a can of beer to appear intoxicated.

Detective Leavitt positioned himself on the 200 block of Main Street across from the Greyhound Bus Station and leaned against a chain link fence. Appellant Richard Miller, who was walking southbound on Main Street, approached Detective Leavitt and asked him for money. When Detective Leavitt told Miller that he would not give him any money, Miller put his arm around Detective Leavitt and invited him to get a drink.

Miller stood to the left of Detective Leavitt with his right arm around Detective Leavitt’s shoulders. Miller then pulled Detective Leavitt closer to him, quickly reached his hand into Detective Leavitt’s pocket, and took the twenty dollars. Miller then loosened his grip on Detective Leavitt and again asked for money. Detective Leavitt said that he could not give Miller any money because his money was gone. The undercover arrest team then converged on the location and took Miller into custody.

The State charged Miller, by information, with larceny from the person. After a two-day trial, the jury convicted Miller, and the district court sentenced him to a maximum of 32 months and a minimum of 12 months imprisonment. On appeal, Miller argues that he was entrapped, that the prosecutor impermissibly commented on his decision not to testify, and that the prosecutor committed other misconduct.

Reasoning

Miller argues that police officers entrapped him by improperly tempting him with exposed money and a helpless victim. We disagree.

“The entrapment defense is made available to defendants not to excuse their criminal wrongdoing but as a prophylactic device designed to prevent police misconduct. . . . Entrapment encompasses two elements: (1) an opportunity to commit a crime is presented by the state (2) to a person not predisposed to commit the act. . . . The Government may use undercover agents to enforce the law.” Nevertheless, undercover agents “may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.”

In DePasquale v. State, 757 P.2d 367 (Nev. 1988), we discussed our prior entrapment jurisprudence where an undercover officer posed as a decoy. We cited three earlier cases that collectively held that the defendant was entrapped where the undercover decoy “was apparently helpless, intoxicated, and feigned unconsciousness with cash hanging from his pocket.” Specifically, we noted that the “degree of vulnerability, exemplified in [those prior cases] by the decoy’s feigned lack of consciousness, … cloaks any suggestion of the defendant’s predisposition.”

However, in DePasquale, we held that the defendant was not entrapped when he stole from a female undercover police officer who was walking along open sidewalks around a casino with money zipped into her purse. Thus, we have drawn a clear line between a realistic decoy who poses as an alternative victim of potential crime and the helpless, intoxicated, and unconscious decoy with money hanging out of a pocket. The former is permissible undercover police work, whereas the latter is entrapment.

The opportunity presented to commit a crime was not improper. The theft in this case occurred across from the Greyhound Bus Station at the 200 block of South Main Street in Las Vegas. Twenty one-dollar bills were folded inside the breast pocket of Detective Leavitt’s flannel shirt so that only the tips of the bills were exposed. Miller, who was walking southbound on Main Street, approached Detective Leavitt and asked him for money. When Detective Leavitt told Miller that he would not give him any money, Miller put his arm around Detective Leavitt and invited him to get a drink. Miller stood to the left of Detective Leavitt with his right arm around Detective Leavitt’s shoulders. Miller then pulled Detective Leavitt closer to him, quickly reached his hand into Detective Leavitt’s pocket, and took the twenty dollars.

The police committed no misconduct in this operation. The opportunity presented was sufficient to lead to a criminal act only by a person predisposed to commit a crime. Though a suspect is entrapped when the decoy officer poses as an unconscious vagrant with exposed money hanging from his pockets, Detective Leavitt did not feign unconsciousness nor was his money readily accessible. Only a portion of the bills were exposed; a passerby could see the edges of currency, but not the denominations. Detective Leavitt did not entice Miller into stealing the money. Rather, Miller approached Detective Leavitt and asked him for money. When Detective Leavitt refused to give him money, Miller picked his pocket.

It is clear that Miller was predisposed to commit larceny from the person. We have recognized five factors that, though not exhaustive, are helpful to determine whether the defendant was predisposed: (1) the defendant’s character, (2) who first suggested the criminal activity, (3) whether the defendant engaged in the activity for profit, (4) whether the defendant demonstrated reluctance, and (5) the nature of the government’s inducement. “Of these five factors, the most important is whether the defendant demonstrated reluctance which was overcome by the government’s inducement.”

Miller’s character is unclear from the record, but it is clear that Miller initiated the conversation and engaged in the larceny for profit. Furthermore, Miller exhibited no reluctance about his actions. Finally, the critical balance between government inducement and Miller’s reluctance weighs in favor of predisposition here. Miller approached Detective Leavitt, initiated a conversation, and asked for money. When Detective Leavitt told Miller he would not give him any money, Miller picked his pocket. These facts demonstrate a predisposition to commit the crime of larceny from the person. Since Miller was predisposed to commit the crime, he was not entrapped.

Holding

We conclude that Miller was not entrapped because he was predisposed to commit the crime of larceny from the person. Furthermore, the State did not improperly comment on Miller’s failure to testify, nor did the State commit prosecutorial misconduct by implying that Miller was dangerous and preyed upon vulnerable persons. Accordingly, we affirm the conviction.

CHAPTER SEVEN

You Decide 7.1: Berry v. Superior Ct., 256 Cal. Rptr. 344 (Cal. Ct. App. 1989).

There are several prerequisites for affixing second degree murder liability upon an unintentional killing. One requirement is the defendant's extreme indifference to the value of human life, a condition which must be demonstrated by showing the probability that the conduct involved will cause death. Another requirement is awareness either (1) of the risks of the conduct, or (2) that the conduct is contrary to law. Here, evidence of the latter requirement is first, that the very possession of Willy may have constituted illegal keeping of a fighting dog. Second, there is evidence that defendant kept Willy to guard marijuana plants, also conduct with elements of illegality and antisocial purpose. Thus the second element …could be satisfied here in a number of ways.

Have we here evidence of the elements of second degree murder as described in these decisions, namely, the high probability the conduct will result in the death of a human being, a subjective appreciation of the risk, and a base antisocial purpose or motive. The People point to these facts: The homes of defendant and the victim's family shared a lot and were in close proximity, the Soto family had four very young children and defendant knew this; defendant knew the dog Willy was dangerous to the children, as evidenced by the mother's testimony that he told her that dog could be dangerous but was behind a fence; defendant in fact lulled Yvonne into a false sense of security by assuring her the dangerous dog was behind a fence when he was in fact accessible; defendant bred fighting dogs and had knowledge of the nature and characteristics of fighting pit bulls; defendant had referred to Willy as a "killer dog"; pit bulls in fact are sometimes dangerous and will attack unpredictably and without warning; and Willy was a proven savage fighting dog.

From this mass of evidence it is possible to isolate facts which standing alone would not suffice as the basis of a murder charge. For example, we do not believe that a showing that Willy was dangerous to other dogs, without more, would be sufficient to bind over his owner on a murder charge; there is no evidence in this record that dogs who are dangerous to their own kind are dangerous to human beings and therefore there is no support for an inference that the owner of such a dog should be aware of any such danger. But the evidence amassed here goes beyond demonstrating that Willy was aggressive towards his own kind. We believe this record shows first, that Willy's owner may have been actually aware of the dog's potential danger to human beings. This mental state may be proved by showing he kept the dog chained, he warned the child's parents that the dog was dangerous to children, and he spoke of the dog as dangerous. Second, the testimony of the animal control officer could support an inference that fighting pit bull dogs are dangerous to human beings, and the record of defendant's extensive knowledge of the breed could support an inference that he knew such dogs are dangerous.

There is also evidence, consisting mainly of physical evidence seized from defendant's home, showing that defendant is a connoisseur of fighting pit bull dogs and had sought out a vicious dog in order to have him fight successfully.

Thus there is a basis from which the trier of fact could derive the two required elements of implied malice, namely existence of an objective risk and subjective awareness of that risk. Additionally, there is arguably some base and antisocial purpose involved in keeping the dog (1) because harboring a fighting dog is illegal and (2) because there is some evidence the dog was kept to guard an illegal stand of marijuana. Illegality of the underlying conduct is not an element of the charge, but may be relevant on the issue of subjective intent. We do not know the actual probability that a death could result from defendant's conduct in keeping the dog. Presumably that is a question of fact to be submitted to the court or jury upon appropriate instructions requiring that it find a high probability that death would result from the circumstances before it can convict of murder.

Defendant emphasizes the facts that Willy had never before attacked a human being and that he was kept chained on the premises. First, the fact that the dog was kept chained lessened little the risk which he posed, in view of the close proximity of very young children, the obvious risk of a child's wandering near, and indeed being attracted to a seemingly harmless pet, and the easy accessibility to his vicinity. The mere fact he was chained clearly cannot, under the circumstances of record, absolve the owner of blame. Also, the fact that defendant took the precaution of restraining the dog is a fact which might show he knew the dog was dangerous. A similar inference may rest on the facts the dog was a pit bull, bought for his fighting ability, bred and conditioned as a fighting dog, kept chained, and described by defendant as a killer. These circumstances clearly support an inference defendant knew his dog was dangerous to humans.

We conclude that it is for the jury to resolve the factual issues of probability of death and subjective mental state. There is sufficient evidence to justify trial for murder on an implied malice theory (text taken directly from judgment of the court).

You Decide 7.2: State v. Sophophone, 19 P.3d 70 (Kan. 2001).

The proximate cause approach provides that 'liability attaches "for any death proximately resulting from the unlawful activity--even the death of a co-felon--notwithstanding the killing was by one resisting the crime.'" Under the proximate cause approach, felony murder may preclude consideration of the deceased's identity, which would make a defendant liable for all deaths caused by others during the crime.

Application of the proximate cause varies greatly by jurisdiction because the statutes differ substantially. The proximate cause approach becomes controversial when the homicide is committed by someone other than the felons, but only a minority of jurisdictions follow this approach."

"The majority rule is that the felony-murder doctrine does not apply if the person who directly causes the death is a non-felon. . . ."The reasoning of this approach stems from accomplice liability theory. Generally speaking, the acts of the primary party (the person who directly commits the offense) are imputed to an accomplice on the basis of the agency doctrine. It is as if the accomplice says to the primary party: 'Your acts are my acts.' It follows that [a co-felon] cannot be convicted of the homicides because the primary party was not the person with whom she was an accomplice. It is not possible to impute the acts of the antagonistic party--[the non-felon or] the police officer--to [a co-felon] on the basis of agency.

“An alternative theory, followed by a few courts for awhile, holds that a felon may be held responsible under the felony-murder rule for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victim's death.” Pursuant to this rule, the issue becomes one of proximate causation: if an act by one felon is the proximate cause of the homicidal conduct by [the non-felon] or the police officer, murder liability is permitted." “Although it is now generally accepted that there is no felony-murder liability when one of the felons is shot and killed by the victim, a police officer, or a bystander, it is not easy to explain why this is so." The author discusses foreseeability and that it is not correct to say that a felon is never liable when the death is lawful because it is "justifiable" and goes on to state:

“A more plausible explanation, it is submitted, is the feeling that it is not justice (though it may be poetic justice) to hold the felon liable for murder on account of the death, which the felon did not intend, of a co-felon willingly participating in the risky venture. It is true that it is no defense to intentional homicide crimes that the victim voluntarily placed himself in danger of death at the hands of the defendant, or even that he consented to his own death: a mercy killing constitutes murder; and aiding suicide is murder unless special legislation reduces it to manslaughter. But with unintended killings it would seem proper to take the victim's willing participation into account . . . ."

The leading case adopting the agency approach is Commonwealth v. Redline, 495, 137 A.2d 472 (1958), where the underlying principle of the agency theory is described as follows:

"In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing. The mere coincidence of homicide and felony is not enough to satisfy the felony-murder doctrine."

The following statement from Redline is more persuasive for Sophophone:

"In the present instance, the victim of the homicide was one of the robbers who, while resisting apprehension in his effort to escape, was shot and killed by a policeman in the performance of his duty. Thus, the homicide was justifiable and, obviously, could not be availed of, on any rational legal theory, to support a charge of murder. How can anyone, no matter how much of an outlaw he may be, have a criminal charge lodged against him for the consequences of the lawful conduct of another person? The mere question carries with it its own answer."

The minority of the states whose courts have adopted the proximate cause theory believe their legislatures intended that any person, co-felon, or accomplice who commits an inherently dangerous felony should be held responsible for any death which is a direct and foreseeable consequence of the actions of those committing the felony. These courts apply the civil law concept of proximate cause to felony-murder situations. It should be mentioned that some courts have been willing to impose felony-murder liability even where the shooting was by a person other than one of the felons in the so-called "shield" situations where it has been reasoned "that a felon's act of using a victim as a shield in compelling a victim to occupy a place or position of danger constitutes a direct lethal act against the victim."

It has previously been suggested that the wording in Kaesontae, 260 Kan. 386, relating to "time, distance, and the causal relationship between the underlying felony and the killing" should be interpreted to mean we have adopted the proximate cause approach. That is not the case as this phrase is one which relates to the question of whether the killing occurs during the commission of or flight from the underlying felony. The Kansas cases which have used this wording involved situations where the court was determining if the killing was sufficiently related to the felony in terms of time, distance, and causation in order to constitute felony murder. None of those cases hold that we have adopted the proximate cause approach to the killing of a co-felon by a third party.

Nor have we adopted the proximate cause approach because of our holding and language in State v. Shaw, 405, 921 P.2d 779 (1990), where we held that a defendant who bound and gagged a 86-year-old robbery victim with duct tape was liable for the victim's death when he died of a heart attack while so bound and gagged. Although we may speak of causation in such a case, our ruling in Shaw is better described by quoting the principle that: "The victim must be taken as the defendant finds him. Death resulting from a heart attack will support a felony-murder conviction if there is a causal connection between the heart attack and the felonious conduct of the defendant." This is not the embracing of a proximate cause approach under the facts we face.

An additional argument has been made that when we approved the language of relating to the causation required by the law for felony murder in State v. Lamae, 998 P.2d 106 we recognized that the killing could be perpetrated by the defendant or another. (Emphasis added). The case involved the death of a participant in a methamphetamine fire. Our opinion did state: "It is true that there must be a direct causal connection between the commission of the felony and the homicide to invoke the felony-murder rule. However, the general rules of proximate cause used in civil actions do not apply." This language, if taken in isolation, is much more favorable to Sophophone's position. However, we believe that neither this statement nor the "or another" language in Lamae should be given undue consideration when we resolve the different question we face here.

The overriding fact which exists in our case is that neither Sophophone nor any of his accomplices "killed" anyone. The law enforcement officer acted lawfully in committing the act which resulted in the death of the co-felon. It appears to the majority that to impute the act of killing to Sophophone when the act was the lawful and courageous one of law enforcement officer acting in the line of his duties is contrary to the strict construction we are required to give criminal statutes. …[W]e believe that making one criminally responsible for the lawful acts of a law enforcement officer is not the intent of the felony-murder statute as it is currently written. It does little good to suggest one construction over another would prevent the commission of dangerous felonies or that it would deter those who engage in dangerous felonies from killing purposely, negligently, or accidentally. Actually, innocent parties and victims of crimes appear to be those who are sought to be protected rather than co-felons. We hold that under the facts of this case where the killing resulted from the lawful acts of a law enforcement officer in attempting to apprehend a co-felon, Sophophone is not criminally responsible for the resulting death of Somphone Sysoumphone, and his felony-murder conviction must be reversed.

You Decide 7.3: Girouard v. State, 583 A.2d 718 (Md. 1991).

In this case we are asked to . . . determine whether words alone are provocation adequate to justify a conviction of manslaughter rather than one of second-degree murder.

Facts

Steven S. Girouard and the deceased, Joyce M. Girouard, had been married for about two months on October 28, 1987, the night of Joyce’s death. Both parties, who met while working in the same building, were in the army. They married after having known each other for approximately three months. The evidence at trial indicated that the marriage was often tense and strained, and there was some evidence that after marrying Steven, Joyce had resumed a relationship with her old boyfriend, Wayne.

On the night of Joyce’s death, Steven overheard her talking on the telephone to her friend, whereupon she told the friend that she had asked her first sergeant for a hardship discharge because her husband did not love her anymore. Steven went into the living room where Joyce was on the phone and asked her what she meant by her comments; she responded, “[N]othing.” Angered by her lack of response, Steven kicked away the plate of food Joyce had in front of her. He then went to lie down in the bedroom.

Joyce followed him into the bedroom, stepped up onto the bed and onto Steven’s back, pulled his hair, and said, “What are you going to do, hit me?” She continued to taunt him by saying, “I never did want to marry you and you are a lousy fuck and you remind me of my dad.” The barrage of insults continued with her telling Steven that she wanted a divorce, that the marriage had been a mistake, and that she had never wanted to marry him. She also told him she had seen his commanding officer and filed charges against him for abuse. She then asked Steven, “What are you going to do?” Receiving no response, she continued her verbal attack. She added that she had filed charges against him in the Judge Advocate General’s Office (JAG) and that he would probably be court-martialed.

There was some testimony presented at trial to the effect that Joyce had never gotten along with her father, at least in part because he had impregnated her when she was fourteen, the result of which was an abortion. Joyce’s aunt, however, denied that Joyce’s father was the father of Joyce’s child. In addition, Joyce lied about filing the charges against her husband.

When she was through, Steven asked her if she had really done all those things, and she responded in the affirmative. He left the bedroom with his pillow in his arms and proceeded to the kitchen where he procured a long handled kitchen knife. He returned to Joyce in the bedroom with the knife behind the pillow. He testified that he was enraged and that he kept waiting for Joyce to say she was kidding, but Joyce continued talking. She said she had learned a lot from the marriage and that it had been a mistake. She also told him she would remain in their apartment after he moved out. When he questioned how she would afford it, she told him she would claim her brain-damaged sister as a dependent and have the sister move in. Joyce reiterated that the marriage was a big mistake, that she did not love him, and that the divorce would be better for her.

After pausing for a moment, Joyce asked what Steven was going to do. What he did was lunge at her with the kitchen knife he had hidden behind the pillow and stab her nineteen times. Realizing what he had done, he dropped the knife and went to the bathroom to shower off Joyce’s blood. Feeling like he wanted to die, Steven went back to the kitchen and found two steak knives with which he slit his own wrists. He lay down on the bed waiting to die, but when he realized that he would not die from his self-inflicted wounds, he got up and called the police, telling the dispatcher that he had just murdered his wife.

When the police arrived they found Steven wandering around outside his apartment building. Steven was despondent and tearful and seemed detached, according to police officers who had been at the scene. He was unconcerned about his own wounds, talking only about how much he loved his wife and how he could not believe what he had done. Joyce Girouard was pronounced dead at the scene.

At trial, defense witness, psychologist Dr. William Stejskal, testified that Steven was out of touch with his own capacity to experience anger or express hostility. He stated that the events of October 28, 1987, were entirely consistent with Steven’s personality, that Steven had “basically reach[ed] the limit of his ability to swallow his anger, to rationalize his wife’s behavior, to tolerate, or actually to remain in a passive mode with that. He essentially went over the limit of his ability to bottle up those strong emotions. What ensued was a very extreme explosion of rage that was intermingled with a great deal of panic.” Another defense witness, psychiatrist Thomas Goldman, testified that Joyce had a “compulsive need to provoke jealousy so that she’s always asking for love and at the same time destroying and undermining any chance that she really might have to establish any kind of mature love with anybody.”

Steven Girouard was convicted, at a court trial in the Circuit Court for Montgomery County, of second-degree murder and was sentenced to twenty-two years incarceration, ten of which were suspended. Upon his release, Petitioner is to be on probation for five years, two years supervised and three years unsupervised. . . . We granted certiorari to determine whether the circumstances of the case presented provocation adequate to mitigate the second-degree murder charge to manslaughter.

Issue

Girouard relies primarily on out-of-state cases to provide support for his argument that the provocation to mitigate murder to manslaughter should not be limited only to the traditional circumstances. . . . Steven argues that the trial judge did find provocation (although he held it inadequate to mitigate murder) and that the categories of provocation adequate to mitigate should be broadened to include factual situations such as this one.

The State counters by stating that although there is no finite list of legally adequate provocations, the common law has developed to a point at which it may be said there are some concededly provocative acts that society is not prepared to recognize as reasonable. Words spoken by the victim, no matter how abusive or taunting, fall into a category society should not accept as adequate provocation. According to the State, if abusive words alone could mitigate murder to manslaughter, nearly every domestic argument ending in the death of one party could be mitigated to manslaughter. This, the State avers, is not an acceptable outcome. Thus, the State argues that the courts below were correct in holding that the taunting words by Joyce Girouard were not provocation adequate to reduce Steven’s second-degree murder charge to voluntary manslaughter.

Reasoning

Initially, we note that the difference between murder and manslaughter is the presence or absence of malice. Voluntary manslaughter has been defined as “an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool.”

There are certain facts that may mitigate what would normally be murder to manslaughter. For example, we have recognized as falling into that group: (1) discovering one’s spouse in the act of sexual intercourse with another; (2) mutual combat; (3) assault and battery. There is also authority recognizing injury to one of the defendant’s relatives or to a third party, and death resulting from resistance of an illegal arrest as adequate provocation for mitigation to manslaughter. . . . Those acts mitigate homicide to manslaughter because they create passion in the defendant and are not considered the product of free will.

In order to determine whether murder should be mitigated to manslaughter we look to the circumstances surrounding the homicide and try to discover if it was provoked by the victim. Over the facts of the case, we lay the template of the so-called “Rule of Provocation.” The courts of this State have repeatedly set forth the requirements of the Rule of Provocation:

1. There must have been adequate provocation;

2. The killing must have been in the heat of passion;

3. It must have been a sudden heat of passion—that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool; and

4. There must have been a causal connection between the provocation, the passion, and the fatal act.

We shall assume without deciding that the second, third, and fourth of the criteria listed above were met in this case. We focus our attention on an examination of the ultimate issue in this case, that is, whether the provocation of Steven by Joyce was enough in the eyes of the law so that the murder charge against Steven should have been mitigated to voluntary manslaughter. For provocation to be “adequate,” it must be “calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.” . . . The issue we must resolve, then, is whether the taunting words uttered by Joyce were enough to inflame the passion of a reasonable man so that that man would be sufficiently infuriated so as to strike out in hot-blooded blind passion to kill her. Although we agree with the trial judge that there was needless provocation by Joyce, we also agree with him that the provocation was not adequate to mitigate second-degree murder to voluntary manslaughter.

Before the shooting, the victim had called the appellant “a chump” and “a chicken,” dared the appellant to fight, shouted obscenities at him, and shook her fist at him. . . .

[W]ords can constitute adequate provocation if they are accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm. Clearly, no such conduct was exhibited by Joyce in this case. While Joyce did step on Steven’s back and pull his hair, he could not reasonably have feared bodily harm at her hands. This, to us, is certain based on Steven’s testimony at trial that Joyce was about 5’1’’ tall and weighed 115 pounds, while he was 6’2’’ tall, weighing over 200 pounds. Joyce simply did not have the size or strength to cause Steven to fear for his bodily safety. Thus, since there was no ability on the part of Joyce to cause Steven harm, the words she hurled at him could not . . . constitute legally sufficient provocation. . . .

Holding

Thus, with no reservation, we hold that the provocation in this case was not enough to cause a reasonable man to stab his provoker nineteen times. Although a psychologist testified to Steven’s mental problems and his need for acceptance and love, we agree with the Court of Special Appeals speaking through Judge Moylan that “there must be not simply provocation in psychological fact, but one of certain fairly well-defined classes of provocation recognized as being adequate as a matter of law.” The standard is one of reasonableness; it does not and should not focus on the peculiar frailties of mind of the Petitioner. That standard of reasonableness has not been met here. We cannot in good conscience countenance holding that a verbal domestic argument ending in the death of one spouse can result in a conviction of manslaughter. We agree with the trial judge that social necessity dictates our holding. Domestic arguments easily escalate into furious fights. We perceive no reason for a holding in favor of those who find the easiest way to end a domestic dispute is by killing the offending spouse. . . .

You Decide 7.4: PEOPLE V. STRONG. 37 N.Y.2d 568 (1975).

Strong, age 57, emigrated from “Arabia” to China and then to Rochester, New York, three years later. Defendant articulated the three central beliefs of his religion as “cosmetic consciousness, mind over matter and psysiomatic psychomatic consciousness.” He contendedthat “mind over matter” empowered a “master” or leader to lie on a bed of nails without bleeding, walk through fire, and to perform surgical operations without anesthesia. He also claimed that on countless occasions that he had stopped a followers heartbeat and breathing and hd plunged knives into the individual’s chest without injuring the person. The defendant performed this ceremony on Kenneth Goings, a recent recruit to the religion, and the wounds from the hatchet and three knives which Strong inserted proved fatal. One of Strong’s followers testified that that the defendant had previously performed this ritual without causing injury. Was Strong “guilty only” of criminally negligent homicide?”

JASEN, J.

Defendant was charged, in a one-count indictment, with manslaughter in the second degree for causing the death of Kenneth Goings. At the trial, the defense requested that the court submit to the jury, in addition to the crime charged, the crime of criminally negligent homicide. The court refused, and the jury found defendant guilty as charged. The sole issue upon this appeal is whether the trial court erred in refusing to submit to the jury the lesser crime of criminally negligent homicide.

"The essential distinction between the crimes of reckless manslaughter, second degree, and criminally negligent homicide"… "is the mental state of the defendant at the time the crime was committed. In one, the actor perceives the risk, but consciously disregards it. In the other, he negligently fails to perceive the risk. The result and the underlying conduct, exclusive of the mental element, are the same." We have pointed out that "criminal recklessness and criminal negligence … may … be but shades apart on the scale of criminal culpability…”

The record discloses that the defendant, 57 years old at the time of trial, had left his native Arabia at the age of 19, emigrating first to China and then coming to the United States three years later. He had lived in Rochester only a short time before committing the acts which formed the basis for this homicide charge. He testified that he had been of the Sudan Muslim religious faith since birth, and had become one of the sect's leaders, claiming a sizable following. Defendant articulated the three central beliefs of this religion as "cosmetic consciousness, mind over matter and psysiomatic psychomatic consciousness." He stated that the second of these beliefs, "mind over matter", empowered a "master", or leader, to lie on a bed of nails without bleeding, to walk through fire or on hot coals, to perform surgical operations without anesthesia, to raise people up off the ground, and to suspend a person's heartbeat, pulse, and breathing while that person remained conscious. In powers of "mind over matter," he claimed he could stop a follower's heartbeat and breathing and plunge knives into his chest without any injury to the person. There was testimony from at least one of defendant's followers that he had successfully performed this ceremony on previous occasions. Defendant himself claimed to have performed this ceremony countless times over the previous 40 years without once causing an injury. Unfortunately, on January 28, 1972, when defendant performed this ceremony on Kenneth Goings, a recent recruit, the wounds from the hatchet and three knives which defendant had inserted into him proved fatal.

We view the record as warranting the submission of the lesser charge of criminally negligent homicide since there is a reasonable basis upon which the jury could have found that the defendant failed to perceive the risk inherent in his actions. The defendant's conduct and claimed lack of perception, together with the belief of the victim and defendant's followers, if accepted by the jury, would justify a verdict of guilty of criminally negligent homicide. There was testimony, both from defendant and from one of his followers, that the victim himself perceived no danger, but in fact volunteered to participate. Additionally, at least one of the defendant's followers testified that the defendant had previously performed this ritual without causing injury. Assuming that a jury would not believe that the defendant was capable of performing the acts in question without harm to the victim, it still could determine that this belief held by the defendant and his followers was indeed sincere and that defendant did not in fact perceive any risk of harm to the victim.

Therefore, on the particular facts of this case, we conclude that there is a reasonable view of the evidence which, if believed by the jury, would support a finding that the defendant was guilty only of the crime of criminally negligent homicide, and that the trial court erred in not submitting, as requested, this lesser offense to the jury.

Accordingly, we would reverse and order a new trial.

Gabrielli, J. dissenting

I dissent and conclude that there is no justification in the record for the majority's holding that "defendant's conduct or claimed lack of perception, together with the belief of the victim and defendant's followers, if accepted by the jury, would justify a verdict of criminally negligent homicide". The evidence established defendant's awareness and conscious disregard of the risk his ceremony created and is entirely inconsistent with a negligent failure to perceive that risk. Testimony was adduced that just prior to being stabbed, Goings, a voluntary participant up to that point, objected to continuance of the ceremony saying "No, father" and that defendant, obviously evincing an awareness of the possible result of his actions, answered, "It will be all right, son". Defendant testified that after the ceremony, he noticed blood seeping from the victim's wounds and that he attempted to stop the flow by bandaging the mortally wounded Goings. Defendant further stated that when he later learned that Goings had been removed to another location and been given something to ease the pain, he became "uptight", indicating, of course, that defendant appreciated the risks involved and the possible consequences of his acts.

Simply stated, a reckless offender (manslaughter) is aware of the risk and consciously disregards it; whereas, on the other hand, the "criminally negligent" offender is not aware of the risk created and cannot thus be guilty of disregarding it. Can it be reasonably claimed or argued that, when the defendant inflicted the several stab wounds, one of which penetrated the victim's heart and was four and three-quarter inches deep, the defendant failed to perceive the risk? The only and obvious answer is simply "no."

This case might profitably be analogized to one where an individual believing himself to be possessed of extraordinary skill as an archer attempts to duplicate William Tell's feat and split an apple on the head of another individual from some distance. However, assume that rather than hitting the apple, the archer kills the victim. Certainly, his obtuse subjective belief in his extraordinary skill would not render his actions criminally negligent. Both, in the context of ordinary understanding and the Penal Law definition, the archer was unquestionably reckless and would, therefore, be guilty of manslaughter in the second degree. The present case is indistinguishable.

CHAPTER EIGHT

You Decide 8.1: Carter v. Commonwealth, 594 s.e.2d 284 (va. Ct. App. 2004), Opinion by: Clements, J.

Michael Anthony Carter was convicted in a bench trial of assaulting a police officer. . . . On appeal, he contends the evidence presented at trial was insufficient to support his conviction because the Commonwealth did not prove he had the present ability to inflict actual violence upon the officer. . . . [W]e affirm Carter’s conviction.

Facts

The evidence presented to the trial court established that, on December 29, 1998, around 11:00 p.m., Officer B.N. O’Donnell of the City of Charlottesville Police Department observed a speeding car and, activating his vehicle’s overhead flashing blue emergency lights, initiated a traffic stop. O’Donnell, who was on routine patrol at the time in a high crime area of the city, was driving a marked police vehicle and wearing his police uniform and badge. After the car pulled over, O’Donnell shone his vehicle’s “take down” lights and spotlight onto the car and approached it on foot.

Two people were inside the car, the driver and Carter, who was seated in the front passenger seat. O’Donnell initiated a conversation with the driver, asking for his driver’s license and registration and informing him why he had been stopped. The driver responded to O’Donnell in a “hostile” tone of voice. While conversing with the driver, O’Donnell used his flashlight to conduct a “plain view search” of the car to make sure there were no visible weapons or drugs in it. O’Donnell noticed that Carter had his right hand out of sight “down by his right leg.” Carter then suddenly brought his right hand up and across his body. Extending the index finger on his right hand straight out and the thumb straight up, he pointed his index finger at the officer and said, “Pow.” Thinking Carter “had a weapon and was going to shoot” him, O’Donnell “began to move backwards” and went for his weapon. A “split second” later, O’Donnell realized “it was only [Carter’s] finger.” O’Donnell testified: “The first thing I thought was that I was going to get shot. I—it’s a terrifying experience, and if I could have gotten my weapon, I would have shot him.” Immediately after the incident, O’Donnell, who was “visibly shaken,” asked Carter “if he thought it was funny,” and Carter responded, “Yes, I think it is funny.”

Carter moved to strike the evidence, arguing the Commonwealth’s evidence was insufficient to prove assault because it failed to prove Carter had the present ability to inflict actual violence upon the officer. The Commonwealth responded that proof of such ability was unnecessary as long as the evidence proved the officer reasonably believed Carter had the present ability to inflict actual bodily harm upon him.

The trial court agreed with the Commonwealth. Finding Carter’s “act of pointing what the officer believed at the time to be a weapon at him” did, “in fact, place Officer O’Donnell in reasonable apprehension or fear,” the trial court found the evidence sufficient to prove beyond a reasonable doubt that Carter was guilty of assault. Thus, the trial court denied Carter’s motion to strike the evidence and subsequently convicted him of assaulting a police officer. . . . At sentencing, the court imposed a sentence of three years, suspending two years and six months.

Issue

Virginia Code Annotated section 18.2–57I provides, in pertinent part, that “any person [who] commits an assault . . . against . . . a law enforcement officer . . . engaged in the performance of his public duties as such . . . shall be guilty of a . . . felony.”

On appeal, Carter asserts the Commonwealth failed to prove his conduct constituted an assault of a law enforcement officer because, in pointing his finger at the officer and saying “Pow,” he did not have the present ability to inflict harm upon the officer, as required under the common law definition of assault. Thus, he contends, the trial court erred, as a matter of law, in finding the evidence sufficient to sustain a conviction for assault.

In response, the Commonwealth contends that, under long-established Virginia case law, a defendant need not have had the present ability to inflict harm at the time of the offense to be guilty of assault. It is enough, the Commonwealth argues, that, as in this case, the defendant’s conduct created in the mind of the victim a reasonable fear or apprehension of bodily harm. Accordingly, the Commonwealth concludes, the trial court properly found the evidence sufficient to convict Carter of assaulting a police officer. . . .

Reasoning

While statutorily proscribed and regulated, the offense of assault is defined by common law in Virginia. (In this jurisdiction, we adhere to the common law definition of assault, there having been no statutory change to the crime.) . . . Assault has . . . long been defined at common law “as being (1) an attempt to commit a battery or (2) an intentional placing of another in [reasonable] apprehension of receiving an immediate battery.” Today, most jurisdictions include both of these separate types of assault, attempted battery and putting the victim in reasonable apprehension, within the scope of criminal assault. In Virginia, our Supreme Court has long recognized the existence of both concepts of assault in the criminal law context. . . .

The instruction under consideration . . . presents the question on which there is a sharp and irreconcilable conflict in the authorities on the subject; diametrically opposed positions being taken by the authorities. . . . We think that, both in reason and in accordance with the great weight of modern authority, . . . a present ability to inflict bodily harm upon the victim is not an essential element of criminal assault in all cases. Indeed, under those cases, to be guilty of . . . criminal assault, a defendant need have only an apparent present ability to inflict harm.

Holding

As previously discussed, the two types of criminal assault recognized at common law—attempted assault and putting the victim in reasonable apprehension of bodily harm—are separate and distinct forms of the same offense. They have different elements and are, thus, defined differently and applied under different circumstances. For these reasons, we hold that, under the common law definition of assault, one need not, in cases such as this, have a present ability to inflict imminent bodily harm at the time of the alleged offense to be guilty of assault. It is enough that one’s conduct created at the time of the alleged offense a reasonable apprehension of bodily harm in the mind of the victim. Thus, an apparent present ability to inflict imminent bodily harm is sufficient to support a conviction for assault.

In this case, the trial court found that Carter’s “act of pointing what the officer believed at the time to be a weapon at him” did, “in fact, place Officer O’Donnell in reasonable apprehension or fear.” The evidence in the record abundantly supports this finding, and the finding is not plainly wrong. . . . O’Donnell testified that he thought he was “going to get shot.” It was, he said, “a terrifying experience, and if I could have gotten my weapon, I would have shot him.”

The trial court could reasonably conclude from these facts that the officer was terrified and thought he was about to be shot. That the officer’s terror was brief does not alter the fact, as found by the trial court, that the officer believed for a moment that Carter had the intention and present ability to kill him. Moreover, under the circumstances surrounding the incident, we cannot say, as a matter of law, that such a belief was unreasonable. Thus, although Carter did not have a weapon, the trial court could properly conclude from the evidence presented that Carter had an apparent present ability to inflict imminent bodily harm and that his conduct placed Officer O’Donnell in reasonable apprehension of such harm.

Hence, the trial court did not err, as a matter of law, in finding the evidence sufficient to convict Carter of assault. . . . Accordingly, we affirm Carter’s conviction for assault.

Dissenting, Benton, J., with whom Fitzpatrick, C.J., joins

The police officer testified that the “first thing I thought was that I was going to get shot. I—it’s a terrifying experience, and if I could have gotten my weapon, I would have shot him. But it’s—it happens . . . [in] a split second.” The officer testified that Carter then “started laughing.”

The common law definition of “assault” . . . does not encompass this type of intentional conduct, which is intended to startle but is performed without a present ability to produce the end if carried out. . . . I disagree with the majority opinion’s holding that a conviction for criminal assault can be sustained in Virginia even though the evidence failed to prove the accused had a present ability to harm the officer. I would hold that Carter committed an “act accompanied with circumstances denoting an intention” to menace but it was not “coupled with a present ability . . . to use actual violence” or “calculated to produce the end if carried into execution.”

Because Virginia continues to be guided by the common law rule concerning assault, I would hold that the conviction is not supported because the evidence failed to prove Carter acted “by means calculated to produce the end if carried into execution.” Accordingly, I would reverse the conviction for assault.

You Decide 8.2: State v. Ellis. 979 A.2d 1023 (VT. 2009). 2009 VT 74

DOOLEY, J.

Based on the evidence presented, the trial court found the following facts, taken in the light most favorable to the State, and disregarding any modifying evidence. Defendant and the alleged victim, Sarah S.,[1] attended the same high school and met while they both were sophomores. During their sophomore year, they had one class together. In their junior year, they had the same lunch period and shared a table together at lunchtime. The victim felt sorry for defendant, who did not have a lot of friends, and she was kind and friendly to him. During the spring of their junior year, defendant sent her an email revealing that he had a crush on her. She responded that she had a boyfriend and that there was "no chance" they could ever be more than friends. During their junior year, defendant began a practice of waiting for her outside most of her classes and at the end of the school day, trying to engage her in conversation. Defendant also gave her a few small gifts and continued to send her emails periodically. The victim included defendant on a few emails that she sent to a large group.

In June 2006, between their junior and senior years, defendant for the first time called the victim at her house one Saturday. During this conversation, defendant suggested that they get together some time in person. She did not reject this possibility. The next morning around 8 a.m. defendant called again. The victim was surprised and embarrassed by this call and told defendant that she could not talk then. After this call, her mother became aware of defendant's attentions and became concerned.

On June 26, defendant sent the victim an explanatory and apologetic email. She did not respond to this message. Defendant sent her another email on June 27 and again on June 28. She then responded, saying that she wanted to be friends but "you need to back off a little bit." Defendant responded with an expletive-filled angry email that questioned why she was punishing him, if she was trying to make him mad, why she was not interested in him, and how she could want to be friends but not actually see or talk to him. The victim was shocked and alarmed by this email and felt that defendant was angry with her. On June 30, defendant sent her an email in which he asked if she was mad at him or mad at his angry email, and asked that she give him a chance to be her friend again.

At some point near the time of the June 30 email, defendant approached the victim at a summer recreation program at the high school where she worked, and repeated his apologies. He asked if she would "do something" with him; she answered maybe. She cut the conversation short because she thought it was inappropriate for him to approach her at work and she was uncomfortable.

On July 19, the victim sent defendant an email in response to defendant's attempt in an earlier email to meet at a proposed date and time. She wrote that she was unavailable on the proposed date, stating that "it won't really work out," and ending the email with "sorry." By return email, defendant asked whether she was being sarcastic when she wrote that she was sorry that his suggested meeting date was not available. He then asked her to help him, and admitted that he was "hoping to coax a real response by backing [her] up into a corner." He proposed that they "make rules for each other," and said he was "only trying to make [her] a friend again."

At some point in their interactions over the summer, the victim requested that defendant never call her at home again. In response, defendant never called her again.

When classes began in the fall, defendant and the victim had two classes together. Defendant resumed waiting for the victim after classes and trying to engage her in conversation. Thereafter, at some date in September 2006, she told defendant that she did not want to even be friends and that she wanted nothing to do with him. Her friends became aware that defendant was paying her unwanted attention, and began escorting her between classes and to after-school activities. If defendant attempted to engage her, they would intervene in the conversation. She repeatedly told defendant that she did not want to talk to him, and asked him to leave her alone. Defendant continued to approach her between classes. At least on one occasion, defendant attempted to engage her in conversation during one of their shared classes. The teacher was struck by how odd this behavior was, and how uncomfortable the victim looked. He spoke to her about the incident after class, and reported it to the administration.

Defendant attended after-school sporting events where the victim was also a spectator and stood nearby. After one game, defendant approached her and her brother and requested a ride to his own *1026 car, which was parked in an adjacent lot. She refused; she was startled and alarmed by this conduct.

On October 15, 2006, the victim, her brother, and her mother were shopping at a supermarket in her hometown. As they drove into the parking lot, defendant drove out. He then turned his car around, turned back into the parking lot, and parked. He then began searching for something in his vehicle. She and her family completed their shopping and were standing in the checkout line when defendant entered the store and approached her brother. Defendant asked if he knew the time; her brother pointed to the clock on the wall. Defendant then asked if he could borrow his cell phone; her brother said no. Defendant then left the store. When the family returned home, her mother told her father what had happened.

The victim's father is the chief of police in her hometown. On October 16, he was assisting with traffic control near the high school and saw defendant. He approached defendant and told him not to contact his daughter or to harass her in any way.

The next day at school, defendant approached the victim in the school library, telling her that she did not have to induce her father to talk to him and that she could have asked him herself to leave her alone. She replied that she had been doing so for months but to no avail. Defendant sent her an email that day in which he said that he "just need[ed] a friend" and that he was "only asking for some closure now."

Later, defendant approached the victim between classes at school. She attempted to ignore him, and her boyfriend stepped between them, told defendant to back off, and pushed defendant. School authorities intervened, and both defendant and the boyfriend were interviewed by school staff. That same day, defendant tried to talk to the victim again during class. She ignored him.

That week the victim had her final game of the soccer season. As her father was getting out of the family car in the school's parking lot, he saw defendant standing close by and confronted him. He swore at defendant, and told him to keep away from his family and his daughter. Defendant said he was there to pick up his sneakers from inside the school. The family car was parked in such a location so that defendant was not required to pass it in order to gain entrance to the school. The victim was not present at this incident.

In the course of all this conduct, defendant never threatened the victim. His most offensive email contained a veiled threat of self-harm. There is no evidence that the victim feared physical violence or unlawful restraint from defendant.

After the incident in the school parking lot, the victim's father contacted the Vermont State Police and asked them to investigate defendant. Two state police officers arrested defendant and interviewed him at the state police barracks. At least part of the videotape of the interview was shown to the jury as part of the evidence in this case. In the interview, defendant represented that he would not initiate further contact with the victim. Nevertheless, defendant was charged on October 19 with misdemeanor intentional stalking under 13 V.S.A. § 1062 for his actions during the summer and fall of 2006. Both he and the victim were seventeen years of age when defendant was arrested and charged.

The term "stalk" is defined in 13 V.S.A. § 1061(1) and contains three elements, two of which are defined in the alternative. The first element is a "course of conduct which consists of following, lying in wait for, or harassing." Id. The second is that the course of conduct "serves no legitimate purpose. The third element is that the course of conduct "would cause a reasonable person to fear for his or her physical safety or would cause a reasonable person substantial emotional distress." Initially, the State charged defendant with intentional stalking with no specification of which of the alternative parts of the elements it charged. From the beginning, defendant argued that the State had to specify its charge more precisely and the trial judge indicated agreement. Initially, the State resisted suggestions that it provide any more specificity on the first element, but it did agree to specify with respect to the third element that defendant's conduct would cause a reasonable person substantial emotional distress. Eventually, the State narrowed its theory on the first element to "following" or "harassing," and agreed that the jury would have to be unanimous on which of these two theories defendant's conduct met for this element to be satisfied.

The statute contains further definitions of the alternative parts of the first element. Thus "following" means "maintaining over a period of time a visual or physical proximity to another person in such a manner as would cause a reasonable person to have a fear of unlawful sexual conduct, unlawful restraint, bodily injury, or death." "Harassing" means "actions directed at a specific person, or a member of the person's family, which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death, including but not limited to verbal threats, written, telephonic, or other electronically communicated threats, vandalism, or physical contact without consent." The State's theory of the case was that defendant committed the offense of stalking by intentionally engaging in a course of conduct consisting of following or harassing the victim.

At the close of the State's evidence, defendant made a motion for judgment of acquittal under Vermont Rule of Criminal Procedure 29, arguing that the State failed to sustain its burden of proof. The court reserved decision on this motion. Defendant raised this motion again at the close of all the evidence. The court again reserved decision, and allowed the case to be submitted to the jury, specifying that the jury had to be unanimous on the elements on which it convicted defendant, if it came to a guilty verdict. No special-verdict form was given to the jury. The jury reached a guilty verdict.

After the verdict, the court ruled on defendant's Rule 29 motion. Finding that "[t]he State presented not a scintilla of evidence that the defendant ever threatened" the victim and that "[a]t worst, his most offensive e-mail ... contained a veiled threat of self-harm," the court decided that there was no evidence of harassment, apparently because it viewed the statute as requiring a threat of harm to the victim or her family members. The court determined that there was sufficient evidence of "following," because the following "continue[d] over a period of time and in such a manner that a reasonable person would fear unlawful restraint or bodily injury." The court reasoned:

The repeated, continuous, persistent following that the defendant engaged in was, by its nature, sufficient to create such a fear, if only because it was so clearly unwanted. The defendant's persistence together with his clear disregard of the victim's and her father's expressed desires for the following to end, were sufficient to create a reasonable fear. Based upon these facts, a reasonable person might well fear that, unless he was stopped, the defendant would actually physically restrain the victim to force her to listen to him and have contact with him.

This appeal followed.

We begin with defendant's argument that the evidence was insufficient to convict him of following, and therefore of stalking. We review the denial of a Rule 29 motion for judgment of acquittal de novo, considering whether "the evidence, when viewed in the light most favorable to the State and excluding any modifying evidence, fairly and reasonably tends to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt."

Defendant makes two main arguments in support of his Rule 29 motion: (1) as a matter of law, his conduct would not cause a reasonable person to fear unlawful restraint or bodily injury; and (2) the State was required to show that defendant had the specific intent to create a reasonable fear of unlawful restraint or bodily injury and did not meet that burden. We address the first argument and find it determinative. In addressing the first argument, we narrow it consistent with the decision of the district court that found a reasonable fear only with respect to unlawful restraint.[5]

The term "unlawful restraint" is not defined in the stalking law. However, 13 V.S.A. §§ 2406 and 2407 make unlawful restraint a crime with two degrees. Given the nature and purpose of the stalking law, person is guilty of unlawful restraint if the person knowingly restrains another person. 13 V.S.A. § 2406(a)(3).[6] The term restrain is defined to mean "to restrict substantially the movement of another person without the person's consent or other lawful authority," under three different circumstances. Id. § 2404(3). The circumstance applicable to this case is where a defendant "confin[es] the restrained person for a substantial period either in the place where the restriction commences or in a place to which the person has been moved." We have held that the term "substantial" in this definition is measured by the "quality and nature of the restraint rather than just on duration." In that case, we held that the period of restraint of a few minutes was substantial where it involved holding a correctional facility nurse by the throat in a hostage situation.

In framing his argument as to why there was insufficient evidence to support the conviction, defendant emphasizes two items missing from in the State's case: threats to restrain the victim, and the victim's subjective fear that she would be restrained. While relevant to our decision, the absence of these facts is not determinative. As defined by the Legislature, the elements of the crime do not require that defendant had threatened violent behavior or unlawful restraint in the past, or that the victim feared for her safety or that she would be restrained. Threats are commonly present in stalking situations, and aid the State's case if present, but their absence is not fatal to a stalking prosecution. Similarly, the victim's fear may be helpful to the State, if present, but the critical element of the crime is defined solely in objective terms— whether a "reasonable person" would fear "unlawful restraint"—and the absence of the victim's fear is not determinative.

The State and the trial court developed a theory of the main element of the case that did not depend upon threats by defendant or the victim's fear. Their theory on the objective component of the element of "following" was that defendant's conduct had become so persistent over such an extended period, and defendant ignored demands that he stop contact with the victim, that a reasonable person would fear that he would "actually physically restrain the victim to force her to listen to him and to have contact with him." In analyzing whether the facts support the trial court's theory, we are aided by decisions from other jurisdictions in which courts have relied upon similar or identical theories. In each of these cases there was no history of violence and no threat of violence, but the court affirmed a conviction for stalking. The New Hampshire Supreme Court in Simone explained the rationale as follows:

Even in the absence of an explicit verbal threat of physical violence, a reasonable person could view the defendant's unrelenting telephone calls and gifts to [the victim], especially in light of the defendant's articulated history of emotional instability, as evidence that the defendant was obsessed with [the victim] and *1030 posed a threat of physical violence to her. ...

The evidence demonstrates that the defendant obsessively called and sent packages to [the victim] for several years even though [the victim], the police, and the courts repeatedly and explicitly told him not to do so. He also communicated that he was emotionally unstable and suicidal.

Essentially, the trial court here adopted the theory of Simone, that when unwanted persistence reaches obsession after warnings to stop, a reasonable person would have a fear of escalation to physical violence.

We do not dispute that obsessive behavior, without threats or attempted acts of violence, can cause a reasonable person to fear unlawful restraint, but conclude that in this case defendant's actions do not rise to a level that would cause a reasonable person to have such fear. The facts of the decisions that have applied this obsession rationale are orders of magnitude more extreme than those before us. In Simone, the defendant met the victim when she conducted a census survey, and called her more times than she could estimate, even after she told him to cease contact and after she obtained a court protective order against him contacting her. He expressed anger at her, sent her gifts, explained that he had serious personal problems and was suicidal and out of control, and persisted after police intervention.

Garza is closer to this case, but the facts are still more extreme. In that case, the victim's former work supervisor called her and sent her flowers and love notes after she insisted orally and in writing that he stop. In giving her a rose, the defendant said that the rose reminded him of her, "hurtful yet beautiful." Garza, 736 N.E.2d at 324. Together with flowers on another occasion was a note that spoke of hate, anger, bitterness, malice, and venom. Id. He frequently watched her at a gym while she was working out, and approached her at the gym and in a grocery store to which he followed her. Id.

In Russell, the defendant, who had dated the victim, was found looking through her dining room window at night. He disclosed that he frequently drove by the victim's house or parked his car in the neighborhood and walked by the house. He was charged with stalking as a result of that conduct, and a protective order was issued against him. Nevertheless, he appeared at a remote campground where the victim was present with her daughters and thereafter entered her home while she was away and took personal information about her.

There are distinctions between the present case and the foregoing decisions that have relied upon the obsession theory. Almost all the interaction between defendant and the victim occurred at school in public areas or at school-related public activities, so this case lacks most of the surreptitious activity of the reported decisions. There is no evidence that defendant tried to get the victim alone in a private setting, where unlawful restraint was possible, to force the victim to talk directly to him. When she requested, defendant ceased telephone calls to her. Further, the victim did not testify that she feared unlawful restraint or bodily injury from defendant, another distinction from the reported decisions.

Although the record discloses conduct that the victim may not have wanted during their junior year in high school and the summer thereafter, she did not clearly indicate that she wanted no further contact with defendant until September of their senior year, and he was arrested in October. Thus, the period in which he was on clear notice that his contact was unwanted was very short in relation to the other cases. The trial court relied upon the fact that defendant was clearly warned by the victim's father, but this incident of outside intervention was small compared to that in most of the reported cases. There was almost no attempt to enlist the assistance of third parties, which is significant in that there was no clear message to defendant to disengage from a person in a position of authority.

Furthermore, this case involves high school students, and the behavior of defendant was often more awkward than deliberate. While we agree that defendant's conduct was inappropriate, we are reluctant to criminalize interactions that are highly emotional but are not likely to be precursors of violence. However, we recognize the emotional distress felt by the victim, and encourage anyone in such circumstances to seek the assistance of persons in a position of authority, including the police, in order to send a clear message that the unwanted conduct must stop.

We recognize the case is relatively close, but we cannot conclude that a reasonable person would have feared that defendant would engage in unlawful restraint as a result of his conduct. Defendant's conduct was inappropriate and inflicted emotional distress, but it was not criminal under the stalking law as it currently exists. Accordingly, the court should have granted the motion for judgment of acquittal. Because we conclude that the court should have entered a judgment of acquittal, we do not reach the other issues raised by defendant.

You Decide 8.3: GOLDBERG v. Maryland. 395 A.2d 1213. (Md. App. 1979). MELVIN, J., delivered the opinion of the Court.

On October 18, 1977, Randy Jay Goldberg, the appellant, was found guilty by a jury in the Circuit Court for Baltimore County, of rape in the second degree (Art. 27, Section 463 (a) *59 (1)). The appellant was sentenced to a five year term, of which the first two years were to be served in a work release program at the jail and the remaining three years on probation.

On appeal the appellant contends that:

1. the evidence was insufficient to sustain his conviction;

2. the court erred by not, sua sponte, declaring a mistrial;

3. the court erred in denying a motion to suppress an oral statement made by appellant at the time of his arrest.

I

The eighteen year old prosecuting witness was a high school senior who worked part-time as a sales clerk in the Merry-Go-Round clothing store at Towson Plaza. Around 1:00 P.M., on August 10, 1977, she was at work when the appellant, aged twenty-five, entered the store. The prosecuting witness started out trying to sell the appellant clothing but ended up being sold a story by the appellant that he was a free-lance agent and thought she was an excellent prospect to become a successful model. They arranged to meet at 5 o'clock when she got off from work.

When the appellant returned for her at 5:00 P.M., she asked him for "any ID to show me if you are who you say you are". He showed her his driving license with his picture on it. This satisfied her: "Well, I figured that he wouldn't ... if he was planning to harm me in any way ... wouldn't give his name like that, and I figured that, you know, he was who he said he was. I believed him". Despite some cautioning from her employer she drove off with the appellant at 5:10 P.M. in a silver-grey Cadillac Eldorado. The appellant was actually a student at Catonsville Community College and the car belonged to his mother. Appellant told her he was taking her to "a temporary studio" in the Pikesville area. When the "studio" was found to be closed, they drove to a condominium *60 building on Slade Avenue. Upon arrival there she stayed in the car while appellant went inside. Shortly, he returned to the car and told her he had contacted a friend who said they could use his house for his "studio". When they arrived at the friend's house, she helped appellant find a door that was open. The door led to the kitchen which she described as "very dirty" and she "didn't, you know, understand why we were coming here". From the kitchen they walked into the bedroom which by contrast she described as being "really made up really nice" with "a queen sized bed, real big bed, with a red velvet bedspread, and a big backboard on the back." She was "pretty impressed by the room".

Soon after they entered the bedroom, appellant "motioned" her to sit beside him on the bed. Instead, she sat on a chair at the foot of the bed. Appellant then said it was hot in the room and took his shirt off. When asked her reaction to appellant's removing his shirt she responded: "He told me he was hot, so I figured — so I figured he was hot". She then stood up and appellant "came over to me and he started unbuttoning my blouse. He said this is what I want you to do". She pulled her blouse together and said "no". Asked to describe what happened next she said:

"He just kept on smooth-talking me and saying I won't hurt you. This is what I do to all the models that I interview. And he, you know, started motioning me to take my blouse off and everything, and then I went through the same thing with every piece of clothing. It was like, you know, kept on trying to tell me to take it off, and I didn't want to. And he kept on trying to convince me that — he was still trying to convince me that this was this modeling job, and I knew that it wasn't any more." (Emphasis added.)

She said she removed her clothes because she "was really scared of him". "There was nothing I could do". When asked what caused her fright she said: "Because he was — he was so much bigger than I was, and, you know, I was in a room alone with him, and there was nothing, no buildings around *61 us, or anything, and I mean wouldn't helped if I wouldn't — help me if I didn't. It was like being trapped or something". On cross-examination she said she was "afraid" she was "going to be killed".

After her clothes were removed, the appellant "pushed" her down on the bed and tried "to move [her legs] in different ways, and [she] kept pulling them together, and telling him that [she] didn't want to do it, and just wanted to go home". He kept telling her that he wouldn't hurt her "and just to relax". But she was "just really scared" and she was "shaking and my voice was really shaking" and she "kept on telling him [she] wanted to go home", and that "[she] didn't want to do this"; that she "didn't want to be a model, and [she] didn't want to do it anymore. Just to let [her] alone. "When asked, "And what was his reaction?" she testified as follows:

A. He was just — he was just really cool about the whole thing, telling me not to worry, and he wouldn't hurt me, and to relax.

Q. All right. Now, after you were on the bed, and he was moving your legs around, what, if anything, occurred next?

A. Well, he kept on trying to make me get in different positions, and kept on telling me to look sexual or something like that. I don't know what the word was.

Q. All right. And what, if anything, occurred after he said that?

A. He laid me down and placed his hands on my vagina and told me he was doing that to make me relax. I told him that it didn't make me relax.

Q. All right. Then what happened after he placed his hands on your vagina?

A. He went into the other room, and I couldn't see him. He wasn't facing me, and had his back to me, and his hands down by his belt buckle. And I realized what he was doing, and I jumped up grabbed my clothes and started putting them on.

Then he came in and pulled them away from me and said no.

Q. What did he say?

A. He said don't worry. What are you doing that for. I am not going to hurt you, and he kept telling me just to relax, and not to be nervous. And he laid me down on the bed and tried to get me to that stuff again, and I told him I didn't want to do that.

Q. What happened then?

A. And then he put his arms up on my stomach and his torso was in between my legs. He said just take your time; take a deep breath. And then he moved up on me and placed his penis in my vagina.

Q. What were you doing when this occurred?

A. I squeezed my legs together and got really tense, and I just started crying real hard. And I told him not to do that to me.

Q. And what was his response?

A. He didn't say anything. Just stayed there. And then I felt him move.

Q. How long was he on top of you?

A. Not very long.

Q. How long was he moving?

A. I guess for about two minutes, and then I felt him. Just for about two minutes.

Q. Did the Defendant ejaculate to your knowledge?

A. Yes, I think he did.

Q. Now, what, if anything, occurred after the Defendant ejaculated?

A. He got up and he said that if I can't enjoy it, then he can't enjoy it."

The appellant then asked her to go to dinner with him but she declined and he drove her to her home where she lived with her parents. On the way home, the appellant gave her his telephone number which she wrote down on a piece of paper. At his request she gave him her telephone number by writing it on a piece of paper with her lipstick. Although she told him she "would never see him again", she said she gave him her correct telephone number because she "didn't want to get him suspicious of me". They had a "general *63 conversation about sex" in which he told her that "girls act like they don't want to, but they really do". She told him that he "had the wrong impression of [her]"; that she "didn't want him to do that". She further testified, somewhat inconsistently, as follows:

"I told him I didn't want that. I told him I didn't like him doing that to me, and didn't let him. I didn't make him think that I enjoyed all of it, and that I ever wanted to do it again, because I know I would never do it again. Never. I know I would never get near him again." (Emphasis supplied).

The appellant let her off at her home at 6:25 P.M., 1 1/4 hours after she left her place of employment with him at 5:10 P.M. Before the appellant drove off she told him to "drive home safely... I guess I was being more sarcastic than anything". She estimated that they had been at the house where the alleged rape took place for 30 minutes.

When she arrived inside her house she "walked straight pass my parents" to her upstairs room. She said nothing to them because she was "just scared, nervous, just, you know, I wanted to go upstairs and just clean myself up and just forget, you know, about it. Just think". After cleaning herself and using a contraceptive, she called her boyfriend on the telephone and talked to him for "about three minutes". She did not tell him "what happened" because she "didn't know how he would take it". She then called her girlfriend and told her that she "had a problem, and that I was raped today...." She did not relate the details of the "rape". She told her girlfriend not to tell anybody and not to tell her girlfriend's boyfriend, "but she told him anyways". She contemplated calling the police but said she "didn't know who to call", so she called her girlfriend back and asked what she should do. Shortly thereafter the girlfriend and the girlfriend's boyfriend came to her house and after picking up her own boyfriend the four young people eventually went to the police station where the "rape" was reported at approximately 9:00 P.M. According to the girlfriend, the prosecuting witness did *64 not want to report the matter but "[w]e convinced her into going to the police".

After reporting the incident the prosecuting witness was taken to the Greater Baltimore Medical Center for a physical examination. The examining physician's "Impression" was "Recent sexual intercourse", but he found "no evidence of recent trauma" to any part of her body, including the "perineal and genital" areas.

Testifying in his own behalf, the appellant admitted having sexual relations with the prosecuting witness at the time and place alleged, but maintained that it was mutually consensual and that the prosecuting witness did not appear to be frightened at any time.

II

Prior to 1976, the Maryland rape statute was primarily a sentencing law, fixing the penalties without actually defining the crime.] The common law definition of rape that has been applied in Maryland is: "the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim". Hazel v. State, 221 Md. 464, 468-469, 157 A.2d 922 (1960).

By Chapter 573 of the Laws of 1976, effective July 1, 1976, the Legislature divided the crime of rape into "rape in the first degree" and "rape in the second degree". See Art. 27, § 462 (first degree rape) and § 463 (second degree rape), (Md. Code, 1957, 1976 Repl. Vol., 1978 Cum. Supp.). Section 463 provides, inter alia, that,

"A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

(1) By force or threat of force against the will and without the consent of the other person ...."

Section 462 deals with first degree rape and provides, inter alia, that,

"A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force against the will and without the consent of the other person and:

* * *

(3) threatens or places the victim in fear that the victim ... will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping ...".[2]

Section 464E of the new Act provides that,

"Undefined words or phrases in this subheading [Sexual Offenses] which describe elements of the common law crime of rape shall retain their judicially determined meaning except to the extent expressly or by implication changed in this subheading".

The terms "force," "threat of force," "against the will" and "without the consent" are not defined by the 1976 Act. We therefore look to the "judicially determined meaning" of these elements of the common law crime of rape. In doing so, we conclude that the evidence was legally insufficient to sustain the conviction and the judgment will be reversed. We reach this conclusion because on the record before us, viewing the evidence in the light most favorable to the State, we find legally insufficient evidence of the requisite element of "force or threat of force".

There was certainly no "threat of force". On the contrary, the prosecuting witness on numerous occasions in her testimony negated that element. As to actual force, the only arguable evidence is the prosecuting witness' testimony that after she herself had removed all her clothes, the appellant put his hands on her shoulders and "pushed" her down on the bed. This is negated, however, by her further testimony on cross-examination that "he didn't push but guided [her] on the bed". She admitted that she was not "injured or anything" by the encounter. This, of course, is consistent with the findings of the physician who subsequently examined her. Those findings so far as they relate to the use of any actual force were completely negative. But actual physical force is not an indispensable element of the crime of rape.

As said by the Court of Appeals in Hazel v. State,

"Force is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety. But no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily that fact must depend upon the prevailing circumstances.... [F]orce may exist without violence. If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she was placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force. State v. Thompson, 227 N.C. 19, 40 S.E.2d 620 (1946). See also State v. Dill, 3 Terry 533, 40 A.2d 443 (Del. 1944); 75 C.J.S., Rape, § 12b; 44 Am. Jur., Rape, § 5. Cf. Selvage v. State, 148 Neb. 409, 27 N.W.2d 636 (1947).

"With respect to the presence or absence of the element of consent, it is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character. There is, however, a wide difference between consent and a submission to the act. Consent may involve submission, but submission does not necessarily imply consent. Furthermore, submission to a compelling force, or as a result of being put in fear, is not consent. State v. Thompson, supra; State v. Dill, supra.

"The authorities are by no means in accord as to what degree of resistance is necessary to establish the absence of consent. However, the generally accepted doctrine seems to be that a female — who was conscious and possessed of her natural, mental and physical powers when the attack took place — must have resisted to the extent of her ability at the time, unless it appears that she was overcome by numbers or was so terrified by threats as to overpower her will to resist. Am. Jur., Rape, § 7. Since resistance is necessarily relative, the presence or absence of it must depend on the facts and circumstances in each case. See Kidd v. State, 97 Okla. Crim. 415, 266 P.2d 992 (1953). But the real test, which must be recognized in all cases, is whether the assault was committed without the consent and against the will of the prosecuting witness.

"The kind of fear which would render resistance by a woman unnecessary to support a conviction of rape includes, but is not necessarily limited to, a fear of death or serious bodily harm, or a fear so extreme as to preclude resistance, or a fear which would well nigh render her mind incapable of continuing to resist, or a fear that so overpowers her that she does not dare resist. State v. Hoffman, 228 Wis. 235, 247, 280 N.W. 357 (1938)."

Applying these principles to the present case, we hold that the evidence is legally insufficient to warrant a finding by the jury that the prosecutrix exerted the necessary degree of resistance that was overcome by force or that she was prevented from resisting by fear based upon reasonable apprehension of bodily harm.

The State argues that the "totality of [the] circumstances" caused the prosecutrix's fear of being killed and that the fear was a reasonable fear, thus rendering more resistance than that exerted by her unnecessary. First of all, we find nothing in the record evidencing any real resistance by the prosecutrix to anything the appellant said or did. It is true that she told the appellant she "didn't want to do that [stuff]". But the resistance that must be shown involves not merely verbal but physical resistance "to the extent of her ability at the time" The State points to her testimony that when penetration occurred she "squeezed [her] legs together and got really tense". Assuming that this was evidence of her reluctance, even unwillingness, to engage in vaginal intercourse, it was not evidence that she resisted "to the extent of her ability" before the intercourse occurred.

We are left therefore with the question of whether the prosecutrix's lack of resistance was caused by fear based upon reasonable apprehension of physical harm. We find no legally sufficient evidence warranting an affirmative answer to that question. As we said in Winegan v. State, 10 Md. App. 196, 200, 201, 268 A.2d 585 (1970):

"... [W]here the victim's story could not be corroborated by wounds, bruises or disordered clothing, the lack of consent could be shown by fear based upon reasonable apprehension. The rule requiring the apprehension be reasonable was first enunciated in Maryland in Hazel v. State, 221 Md. 464, 469, 157 A.2d 922:

`If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she was placed — *69 a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force.'

"The rule of reason, as we shall call it, was reiterated, either expressly or impliedly, by us in Walter v. State, supra, [9 Md. App. 385, 264 A.2d 882 (1970)] and Rice v. State, supra, [9 Md. App. 552, 267 A.2d 261 (1970)]. It is expressly supported by several cases throughout the country. [Citations omitted]".

On the record before us, we find the evidence legally insufficient to warrant a conclusion that the appellant's words or actions "were reasonably calculated to create in the mind of the victim" a reasonable fear that if she had resisted he would have harmed her, or that, faced with such resistance, he would have used force to overcome it. The prosecutrix swore that the reasons for her fear of being killed if she did not accede to appellant's advances were two-fold: 1) she was alone with the appellant in a house with no buildings close by and no one to help her if she resisted, and 2) the appellant was much larger than she was. In the complete absence of any threatening words or actions by the appellant, these two factors, as a matter of law, are simply not enough to have created a reasonable fear of harm so as to preclude resistance and be "the equivalent of force". Without proof of force, actual or constructive, evidenced by words or conduct of the defendant or those acting in consort with him, sexual intercourse is not rape. This is so even though the intercourse may have occurred without the actual consent and against the actual will of the alleged victim. Thus it is that in the absence of actual force, unreasonable subjective fear of resisting cannot convert the conduct of the defendant from that which is non-criminal to that which is criminal.

As the judgment of conviction must be reversed for insufficiency of the evidence, it is not necessary to decide the other two questions presented by this appeal. With respect to the third question (propriety of the trial court's denial of a motion to suppress an oral statement made by appellant at the time of his arrest) we have assumed that the ruling was correct and have considered the oral statement as part of the evidence in the case. When the arrest warrant was served on the appellant, he said, according to the arresting officer, "[S]omeone must be playing a joke on me. I don't even know the girl". Appellant challenged the admissibility of the statement on the ground that the State had failed to properly comply with the Maryland Rules concerning discovery in criminal cases. The trial court denied the motion to suppress. At trial the appellant testified that when he read the warrant he "was floored at first" because he didn't recognize the prosecutrix's last name. He said he did not recall, but did not deny, making the statement to the arresting officer. While this evidence may have been regarded by the jury as affecting the appellant's credibility, it does not affect our conclusion that the evidence as a whole was legally insufficient to sustain his conviction of rape in the second degree.

You Decide 8.4: Garnett v. State, 632 A.2d 797 (Md. 1993), Opinion by: Murphy, J.

Facts

Maryland’s “statutory rape” law prohibiting sexual intercourse with an underage person is codified in Annotated Code of Maryland (ACM) . . . article 27, section 463, which reads in full:

Second-degree rape.

(1) A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

(a) Who is under 14 years of age and the person performing the act is at least four years older than the victim.

(2) Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 20 years.

Now we consider whether under the present statute, the State must prove that a defendant knew the complaining witness was younger than fourteen and, in a related question, whether it was error at trial to exclude evidence that he had been told, and believed, that she was sixteen years old.

Raymond Lennard Garnett is a young retarded man. At the time of the incident in question he was twenty years old. He has an I.Q. of fifty-two. His guidance counselor from the Montgomery County public school system, Cynthia Parker, described him as a mildly retarded person who read on the third-grade level, did arithmetic on the fifth-grade level, and interacted with others socially at school at the level of someone eleven or twelve years of age. Ms. Parker added that Raymond attended special education classes and for at least one period of time was educated at home when he was afraid to return to school due to his classmates’ taunting. Because he could not understand the duties of the jobs given him, he failed to complete vocational assignments; he sometimes lost his way to work. As Raymond was unable to pass any of the State’s functional tests required for graduation, he received only a certificate of attendance rather than a high-school diploma.

In November or December 1990, a friend introduced Raymond to Erica Frazier, then aged thirteen; the two subsequently talked occasionally by telephone. On February 28, 1991, Raymond, apparently wishing to call for a ride home, approached the girl’s house at about nine o’clock in the evening. Erica opened her bedroom window, through which Raymond entered; he testified that “she just told me to get a ladder and climb up her window.” The two talked, and later engaged in sexual intercourse. Raymond left at about 4:30 the following morning. On November 19, 1991, Erica gave birth to a baby, of whom Raymond is the biological father.

Raymond was tried before the Circuit Court for Montgomery County on one count of second degree rape under § 463(a)(3) proscribing sexual intercourse between a person under fourteen and another at least four years older than the complainant.

The court found Raymond guilty. It sentenced him to a term of five years in prison, suspended the sentence and imposed five years of probation, and ordered that he pay restitution to Erica and the Frazier family.

Issue

Raymond asserts that the events of this case were inconsistent with the criminal sexual exploitation of a minor by an adult. As earlier observed, Raymond entered Erica’s bedroom at the girl’s invitation; she directed him to use a ladder to reach her window. They engaged voluntarily in sexual intercourse. They remained together in the room for more than seven hours before Raymond departed at dawn. With an I.Q. of fifty-two, Raymond functioned at approximately the same level as the thirteen-year-old Erica; he was mentally an adolescent in an adult’s body. Arguably, had Raymond’s chronological age, twenty, matched his sociointellectual age, about twelve, he and Erica would have fallen well within the four-year age difference obviating a violation of the statute, and Raymond would not have been charged with any crime at all.

The precise legal issue here rests on Raymond’s unsuccessful efforts to introduce into evidence testimony that Erica and her friends had told him she was sixteen years old, the age of consent to sexual relations, and that he believed them. Thus the trial court did not permit him to raise a defense of reasonable mistake of Erica’s age, by which defense Raymond would have asserted that he acted innocently without a criminal design.

Reasoning

At common law, a crime occurred only upon the concurrence of an individual’s act and his guilty state of mind. In this regard, it is well understood that generally there are two components of every crime, the actus reus or guilty act and the mens rea or the guilty mind or mental state accompanying a forbidden act. The requirement that an accused acted with a culpable mental state is an axiom of criminal jurisprudence.

To be sure, legislative bodies since the mid-nineteenth century have created strict liability criminal offenses requiring no mens rea. Almost all such statutes responded to the demands of public health and welfare arising from the complexities of society after the Industrial Revolution. Typically misdemeanors involving only fines or other light penalties, these strict liability laws regulated food, milk, liquor, medicines and drugs, securities, motor vehicles and traffic, the labeling of goods for sale, and the like. Statutory rape, carrying the stigma of felony as well as a potential sentence of twenty years in prison, contrasts markedly with the other strict liability regulatory offenses and their light penalties.

Modern scholars generally reject the concept of strict criminal liability.

The consensus is that punishing conduct without reference to an actor’s state of mind is unjust since a person is subjected to a criminal conviction without being morally blameworthy. An individual who acts without a criminal intent neither needs to be punished in order to be deterred from future criminal activity nor incapacitated or reformed in order to remove a threat to society.

Conscious of the disfavor in which strict criminal liability resides, the Model Penal Code states generally as a minimum requirement of culpability that a person is not guilty of a criminal offense unless he acts purposely, knowingly, recklessly, or negligently. The Code allows generally for a defense of ignorance or mistake of fact negating criminal intent.

The commentators similarly disapprove of statutory rape as a strict liability crime. In addition to the arguments discussed above, they observe that statutory rape prosecutions often proceed even when the defendant’s judgment as to the age of the complainant is warranted by her appearance, her sexual sophistication, her verbal misrepresentations, and the defendant’s careful attempts to ascertain her true age. Voluntary intercourse with a sexually mature teenager lacks the features of psychic abnormality, exploitation, or physical danger that accompanies such conduct with children.

Statutory rape laws are often justified on the “lesser legal wrong” theory or the “moral wrong” theory; by such reasoning, the defendant acting without mens rea nonetheless deserves punishment for having committed a lesser crime, fornication, or for having violated moral teachings that prohibit sex outside of marriage. We acknowledge here that it is uncertain to what extent Raymond’s intellectual and social retardation may have impaired his ability to comprehend imperatives of sexual morality in any case.

The legislatures of seventeen states have enacted laws permitting a mistake of age defense in some form in cases of sexual offenses with underage persons. In addition, the highest appellate courts of four states have determined that statutory rape laws by implication required an element of mens rea as to the complainant’s age. In the landmark case of People v. Hernandez, 393 P.2d 673 (Cal. 1964), the California Supreme Court held that, absent a legislative directive to the contrary, a charge of statutory rape was defensible wherein a criminal intent was lacking; it reversed the trial court’s refusal to permit the defendant to present evidence of his good faith, reasonable belief that the complaining witness had reached the age of consent. In so doing, the court first questioned the assumption that age alone confers a sophistication sufficient to create legitimate consent to sexual relations, observing that “the sexually experienced fifteen-year-old may be far more acutely aware of the implications of sexual intercourse than her sheltered cousin who is beyond the age of consent.” The court then asked whether it could be considered fair to punish an individual who participates in a mutual act of sexual intercourse while reasonably believing his partner to be beyond the age of consent. . . .

We think it sufficiently clear, however, that Maryland’s second-degree rape statute defines a strict liability offense that does not require the State to prove mens rea; it makes no allowance for a mistake-of-age defense. The plain language of ACM section 463, viewed in its entirety, and the legislative history of its creation lead to this conclusion. Section 463(a)(3) prohibiting sexual intercourse with underage persons makes no reference to the actor’s knowledge, belief, or other state of mind. As we see it, this silence as to mens rea results from legislative design. . . . Second, an examination of the drafting history of section 463 during the 1976 revision of Maryland’s sexual offense laws reveals that the statute was viewed as one of strict liability from its inception and throughout the amendment process. . . . [T]he Legislature explicitly raised, considered, and then explicitly jettisoned any notion of a mens rea element with respect to the complainant’s age in enacting the law that formed the basis of current section 463(a)(3).

Holding

In the light of such legislative action, we must inevitably conclude that the current law imposes strict liability on its violators. This interpretation is consistent with the traditional view of statutory rape as a strict liability crime designed to protect young persons from the dangers of sexual exploitation by adults, loss of chastity, physical injury, and, in the case of girls, pregnancy. The majority of states retain statutes which impose strict liability for sexual acts with underage complainants. We observe again, as earlier, that even among those states providing for a mistake-of-age defense in some instances, the defense often is not available where the sex partner is fourteen years old or less; the complaining witness in the instant case was only thirteen.

Maryland’s second degree rape statute is by nature a creature of legislation. Any new provision introducing an element of mens rea, or permitting a defense of reasonable mistake of age, with respect to the offense of sexual intercourse with a person less than fourteen, should properly result from an act of the Legislature itself, rather than judicial fiat. Until then, defendants in extraordinary cases, like Raymond, will rely upon the tempering discretion of the trial court at sentencing.

Dissenting, Bell, J.

To hold, as a matter of law, that ACM section 463(a)(3) does not require the State to prove that a defendant possessed the necessary mental state to commit the crime, i.e., knowingly engaged in sexual relations with a female under fourteen, or that the defendant may not litigate that issue in defense, “offends a principle of justice so rooted in the traditions of conscience of our people as to be ranked as fundamental” and is, therefore, inconsistent with due process.

In this case, according to the defendant, he intended to have sex with a sixteen-, not a thirteen-year-old girl. This mistake of fact was prompted, he said, by the prosecutrix herself; she and her friends told him that she was sixteen years old. Because he was mistaken as to the prosecutrix’s age, he submits, he is certainly less culpable than the person who knows that the minor is thirteen years old, but nonetheless engages in sexual relations with her. Notwithstanding, the majority has construed ACM section 463(a)(3) to exclude any proof of knowledge or intent. But for that construction, the proffered defense would be viable. I would hold that the State is not relieved of its burden to prove the defendant’s intent or knowledge in a statutory rape case and, therefore, that the defendant may defend on the basis that he was mistaken as to the age of the prosecutrix.

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory “But I didn’t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the eighteenth century was indicated by Blackstone’s sweeping statement that to constitute any crime there must first be a “vicious will.” . . . “[G]iven the tremendous difference between individuals, both in appearance and in mental capacity, there can be no . . . rational relationship between the proof of the victim’s age and the defendant’s knowledge of that fact.”

You Decide 8.5: State v. Stephen F., 152 P.3d 842 (N.M.App.2007).

The primary issue in this case is resolved by Johnson. In that case, our Supreme Court explained that rape shield laws were enacted in reaction to the historic use of evidence of an alleged victim's prior sexual conduct "on the reasoning that someone who had consented previously would have been more likely to have consented on the particular occasion at issue." In general, rape shield laws restrict the use of evidence of an alleged victim's prior sexual conduct to establish consent because such evidence "is only marginally, if at all, probative of consent." In shielding alleged victims from exposing their sexual history, rape shield laws protect alleged victims from harassment and encourage them to report and testify. Rape shield laws are not absolute bars to the admission of an alleged victim's sexual history. The purpose of rape shield laws is "not to remove relevant evidence from the jury's consideration." To assist the trial court in exercising its discretion, Johnson adopted, as a possible framework for analysis, a five-factor test. Id. If a defendant makes a sufficient showing under the test, he establishes a constitutional right to present evidence that would otherwise be excluded under the rape shield law. The five-part test consists of the following factors:

(1) whether there is a clear showing that complainant committed the prior acts; (2) whether the circumstances of the prior acts closely resemble those of the present case; (3) whether the prior acts are clearly relevant to a material issue, such as identity, intent, or bias; (4) whether the evidence is necessary to the defendant's case; [and] (5) whether the probative value of the evidence outweighs its prejudicial effect.

We apply the five factors to the present case. With respect to the first factor, the fact that B.G. engaged in the prior sexual act that Child seeks to introduce is uncontested. B.G. spoke openly about her punishment for having sex with her boyfriend in a statement she gave to the defense. Thus, the first factor is met.

The second factor, whether the circumstances of the prior acts closely resemble those of the present case, does not apply in this case. We acknowledge the State's argument that the prior acts of sex between B.G. and her then boyfriend were "intimate consensual acts," as compared to the "force and coercion" allegedly used by Child in this case. However, Child intended to show that B.G.'s prior sexual conduct and the resulting punishment created a motivation to lie, as opposed to showing any pattern or series consistent with prior sexual conduct. Child was not relying on any of the details of B.G.'s prior acts to analogize factual similarities between B.G.'s prior sexual experiences and her experience with Child. Consequently, we conclude that under the circumstances of this case, the second factor is unhelpful in evaluating the admissibility of the evidence. It is not necessary that each factor be satisfied. Our Supreme Court in Johnson adopted the five factors merely as a framework for analysis and did not intend for the factors to be determinative. In considering the third factor, whether the prior acts are clearly relevant to a material issue, such as identity, intent, or bias, the inquiry is whether the evidence Child sought to admit tended to prove B.G.'s motivation to fabricate. Child asked the trial court to admit evidence that B.G. had previously had sex, that B.G.'s mother had been "really upset" upon learning of her daughter's sexual conduct, and that B.G.'s mother had forbidden B.G. from dating and punished her for three or four months. The State primarily contends that these facts do not support the theory that B.G. had a motive to lie. The State argues that Child would have to show facts tending to prove "that [B.G's] mother knew or even suspected that her daughter had once again engaged in . . . consensual sex with [Child]" in order for Child to establish that B.G. had a motive to fabricate a claim of rape. The State also argues that "[b]ased on [B.G.'s] prior experience, had the sex with [Child] been consensual, [B.G.] would have had every reason not to tell her parents[, and w]ith no disclosure to the parents there is no fear of punishment and consequently no motive to fabricate." We conclude that Child has articulated a plausible theory of relevance for the evidence of B.G.'s prior sexual conduct. Child expressly articulated his theory to the trial court. Unlike the defendant in Johnson, Child specifically argued that he intended the evidence to show that B.G. had a motive to lie, and Child provided the trial court with a legitimate theory of relevance. Because Child articulated a theory of his defense that is supported by the evidence he sought to have admitted, he has demonstrated that B.G.'s prior acts of sexual conduct are relevant to a material issue.

The fourth factor, whether the evidence is necessary to the defendant's case, is also met here. Because the entire case depended upon whether the jury believed Child's or B.G.'s version of the facts, evidence of B.G.'s motive to lie was the basis for Child's entire defense. Child explained that the evidence was crucial to his case because "jurors certainly are going to be asking themsel[ves, w]ell, why would she lie?" Child's defense was that B.G. consented. Denying Child's request to admit that B.G. had a strong motive to lie -- fear of admonishment and punishment from her parents -- essentially stripped Child of his only defense. We therefore conclude that the excluded evidence was not only necessary but crucial to Child's defense.

Under the final factor, the trial court had to weigh the probative value of Child's being able to present his defense against the potential prejudice to the truth-finding process. At the hearing on the motion to admit the evidence, Child's counsel articulated the proper role of the trial court by stating that "the court is being asked to balance [Child's] confrontation rights." Instead of considering Child's constitutional rights, the trial court excluded the evidence by stating, "I do not address it in terms suggested by counsel, that is, under the confrontation aspect but rather under the measure of prejudice versus probative value." Because Child made the requisite particularized showing that the evidence was both highly probative of B.G.'s motive to lie and crucial to his defense, the trial court's failure to address the evidentiary issue "under the confrontation aspect" amounted to a misunderstanding of the balance the trial court must employ in these situations. A trial court must consider a defendant's confrontation rights in exercising its discretion to admit or exclude evidence of this nature. Because Child established relevancy and necessity and because the trial court failed to consider this, we hold that the trial court abused its discretion in excluding the evidence.

A teenage girl's fear of punishment from her parents for engaging in premarital sex tends to prove her motivation to fabricate a claim of rape to cover up consensual sex. The trial court should allow Child to introduce this relevant evidence on retrial. Because of our holding, we need not address Child's alternative argument that the trial court erroneously denied his motion for a new trial.

You Decide 8.6: People v. Hoard. 103 Cal.App.4th 599 (2002).

Gaut, J.

After confining two female employees to a back room, defendant robbed a Temecula jewelry store of $40,000 worth of jewelry and escaped in the car of one of the employees. A jury convicted defendant of armed robbery, aggravated kidnapping, carjacking, and various related special allegations. In addition, the court found defendant had incurred three previous strike convictions. The court sentenced defendant to a total indeterminate sentence of 45 years to life.

Defendant appeals, challenging the two convictions for kidnapping to commit robbery and the conviction for carjacking for insufficiency of evidence. We hold that defendant's movement of the victims was merely incidental to the robbery and did not increase the risk of harm to them. We reverse the convictions for aggravated kidnapping but affirm the conviction for carjacking even though it differs somewhat from the more typical carjacking scenario where a victim is accosted in or near her car.

Joy Salem and Sarah Gibeson were employed by the Jewelry Mart. The owner, Roukan Hatter, had twice purchased jewelry from defendant.

Defendant entered the store shortly after it opened one Sunday afternoon. He displayed a gun and ordered the women to give him the key to the jewelry cases. He also demanded the keys to Gibeson's car. He directed the women into the office at the back, tied their ankles and wrists with duct tape, and taped their mouths. Then he began taking jewelry from the cases. When customers entered the store, he told them it was closed for maintenance or performing inventory.

Gibeson tried to call 911 on her cellular phone but she dropped the phone. Defendant returned to the office, threatened the women, and pulled the office phone out of the wall. After that, he left. After some other customers helped release the women, Gibeson saw her car had been taken.

[1a] Defendant argues that, even viewing the evidence most favorably to the judgment, the evidence is insufficient to show the element of asportation required by Penal Code section 209, subdivision (d), and to prove aggravated kidnapping, in this instance, kidnapping to commit robbery.

Section 209 applies "if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." fn. 3 More simply, the movement must be more than incidental and must increase the inherent risk of harm.

The two-pronged test was derived from the California Supreme Court case of People v. Daniels, in which two defendants committed a number of rapes. In each instance, the rapists moved the victims short distances and the court deemed the movements to be incidental: "[D]efendants had no interest in forcing their victims to move just for the sake of moving; their intent was to commit robberies and rapes, and the brief movements which they compelled their victims to perform were solely to facilitate such crimes. It follows, a , that those movements were 'incidental to' the robberies and rapes ...."

Daniels cited a line of New York authority, including a case discussing an example exactly like the present one: "The court recognized that 'Kidnapping is, by contemporary statutory standards, one of the most serious of crimes. In our era this crime has assumed particularly reprehensible forms.' [Citation.] But the court then turned to fundamentals, observing that 'In basic concept the crime of kidnapping envisages the asportation of a person under restraint and compulsion. Usually the complete control of the person and the secrecy of his location are means of facilitating extortion.' [Citation.] Noting the breadth of the statutory definition of kidnapping, the court reasoned that it 'could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes. Some of the definitions could apply alike to kidnapping and abduction. It is a common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained, or moved into and left in another room or place.' " Additionally, the Daniels court mentioned the New York court's example of a robbery involving " 'the tying up of a victim in a bank and his movement into another room. In essence the crime remained a robbery although some of the kidnapping statutory language might literally also apply to it.' " 7

Citing the Model Penal Code, the Daniels court recognized " 'the absurdity of prosecuting for kidnapping in cases where the victim is forced into his own home to open the safe, or to the back of his store in the course of a robbery.' " Generally, brief movement inside the premises where a robbery is being committed is considered incidental to the crime and does not substantially increase the risk of harm otherwise present.

Daniels concluded brief movement was "merely incidental" and did not "substantially increase the risk of harm" otherwise present: "Indeed, when in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him-whether it be a residence, as here, or a place of business or other enclosure-his conduct generally will not be deemed to constitute the offense proscribed by section 209. Movement across a room or from one room to another, in short, cannot reasonably be found to be asportation ...."

In re Earley, a robbery case, followed Daniels. Earley repeated the two-pronged requirement that "movements of a victim can constitute kidnapping for the purpose of robbery (? 209) only if the movements (1) are not merely incidental to the commission of the robbery and (2) substantially increase the risk of harm beyond that inherent in the crime of robbery." Earley pronounced: "Brief movements to facilitate either robbery or robbery and rape are incidental thereto within the meaning of Daniels. [Citations.] On the other hand movements to facilitate the foregoing crime or crimes that are for a substantial distance rather than brief are not incidental thereto within the meaning of Daniels." fn. 13 The Earley court then held that movement of 10 to 13 blocks to commit robbery was substantial and not " 'merely incidental' " "even though it may have been solely to facilitate the commission of the robbery."

The Earley court qualified these statements in footnote 11: "There is no merit to an assertion by Earley that 'when the robber's intent is solely to facilitate the robbery the movement is merely incidental' thereto within the meaning of Daniels.... Although one definition of 'incidental' is 'nonessential' [citation], that manifestly was not the sense in which the word 'incidental' was used in Daniels. Movement across a room to facilitate a robbery might be essential to the commission of the robbery but be incidental thereto within the meaning of Daniels." Applying Earley in the present case means that, although it may have been either useful or essential to the robbery to put the women in the back room of the jewelry store, it could still be considered incidental movement.

[2] Finally, we arrive at People v. Rayford, in which the court again repeated the two prongs comprising kidnapping for robbery, as identified in Daniels and Earley:

"Kidnapping for robbery, or aggravated kidnapping, requires movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself. These two aspects are not mutually exclusive, but interrelated. As for the first prong, or whether the movement is merely incidental to the crime of robbery, the jury considers the 'scope and nature' of the movement. This includes the actual distance a victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong. "In addition, we have since Daniels, analyzed the question of whether the movement was incidental to the commission of the underlying crime by considering the context of the environment in which the movement occurred. [Citations.] Thus, in Daniels, the defendants, 'in the course of robbing and raping three women in their own homes, forced them to move about their rooms for distances of 18 feet, 5 or 6 feet, and 30 feet respectively.' We held that these brief movements were merely incidental to the commission of robbery.

[Citation.] [?] ... [?]

"The second prong of the Daniels test refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in robbery. This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes.

In Rayford, the court ultimately held there was sufficient evidence of asportation when the victim of a rape was moved 105 feet at night from a parking lot to an area behind a wall and not visible from the street. The facts of Rayford differ significantly from the present case in which the movement occurred within the store where the robbery occurred.

Despite this line of cases, the lower courts have continued to grapple with the meaning of "merely incidental." Two recent cases involving kidnapping to commit rape confuse "incidental" with "necessary." In People v. Salazar, a rapist dragged his victim 29 feet from a motel hallway into a motel bathroom. Salazar reasoned the rape could have been attempted in the motel hallway. Because movement was not necessary to commit the rape, it was not incidental. Stated affirmatively, according to Salazar, necessary movement is incidental movement. But that equation is contrary to the accepted definitions of incidental as secondary, minor, subordinate, or nonessential.

Salazar acknowledged there are many cases involving alleged kidnapping to commit robbery in which the California Supreme Court has followed Daniels and found movement was incidental. In a footnote, Salazar tried to distinguish those cases, focusing on a perceived difference between robbery and rape: "Whereas the commission of a robbery may frequently require that a victim be moved to the property which is the object of the robbery, a rape involves solely an attack on the person and does not necessarily require movement to complete the crime." This sentence does not make sense. Certainly, rape is more easily, if not necessarily, accomplished out of plain view than in a public hallway. It could be said rape may frequently require movement. It could also be correctly said a robbery does not necessarily require movement. More accurately, some robberies and rapes require movement and some do not. Salazar's effort to distinguish between rape and robbery is not persuasive.

In People v. Shadden, defendant attempted to rape a video store owner after dragging her nine feet into a small back room of the store. The court adopted Salazar's reasoning that rape does not necessarily require movement and therefore movement was more than incidental. Like Salazar, Shadden equates the meaning of "incidental" with "necessary:" "The jury could reasonably infer that the movement was not incidental to the attempted rape because Shadden only began the sexual attack after he moved her." Then, in seeming contradiction, the Shadden court also observes that "when [defendant] closed the door, he enhanced his opportunity to rape and injure [the victim.]" In other words, moving the victim to the back room facilitated the rape and thus, under Daniels, could properly be regarded as incidental to the main crime.

In our view, incidental and necessary do not mean the same thing. The courts in Shadden and Salazar seem to have committed the error of ipse dixit, as when Humpty Dumpty told Alice, " 'When I use a word' ... 'it] means just what I choose it to mean-neither more nor less.' " But we agree with Alice a word should mean what it says: "This prosaic notion is based on our abiding conviction that communication suffers when language says what it does not mean."

[1b] Instead, we decline to apply the reasoning used in Salazar and Shadden and analyze the facts of this case under Daniels, Earley, and Rayford. Here defendant robbed the jewelry store by forcing the two employees to move about 50 feet to the office at the back of the store. Confining the women in the back office gave defendant free access to the jewelry and allowed him to conceal the robbery from any entering customers who might have thwarted him. Defendant's movement of the two women served only to facilitate the crime with no other apparent purpose. Considering the particular circumstances of this crime, we conclude it was "merely incidental" to the robbery to confine the women in the back of the store.

We also decide the movement did not substantially increase the risk of harm to the women. In Shadden, the court said moving a victim out of the public view causes increased risk because it makes discovery of the crime less likely. But many other cases have held that removal from the public view does not, in itself, substantially increase the risk of harm. Furthermore, a rape victim is certainly more at risk when concealed from public view and therefore more vulnerable to attack. But in the present case, the victims may have been at less risk tied up in the back office where they could not try to thwart the robbery than had they remained at gunpoint in the front of the store. Nor is this a case in which "substantial movement of a victim, by force or fear ... poses a substantial increase in the risk of psychological trauma to the victim beyond that to be expected from a stationary robbery ...." In the Nguyen case, the victim was moved to five different locations over a period of hours, not 50 feet for a few minutes.

We conclude the elements of aggravated kidnapping were not established and those two counts should be reversed.

"'Carjacking' is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence ... against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear." Defendant asserts a carjacking was not proved because defendant did not take Gibeson's car from "her person or immediate presence," an area defined for the jury as being within her "reach, observation or control, so that he or she could, if not overcome by violence or prevented by fear, retain possession of the subject property." Instead, defendant took Gibeson's keys from her while her car was parked outside the store in a parking lot.

Defendant relies on People v. Medina, in which the court found there was a carjacking when the victim "was inside a motel room when his keys were forcibly taken and his nearby car was driven away." The court sidestepped the issue of what constitutes "immediate presence" in the context of a carjacking because the victim had been lured away from his car by a trick. But Medina offers no support to defendant here. Instead, it held: "The statute requires force or fear to be applied to the driver ... clearly a confrontation must occur.... [But] the victim need not actually be physically present in the vehicle when the confrontation occurs."

In a subsequent case, the appellate court concluded the crime of carjacking, like the crime of robbery, "may be established not only when the defendant has taken property out of physical presence of the victim, but also when the defendant exercises dominion and control over the victim's property through force or fear."

Additionally, the People cite a number of federal cases, originating with United States v. Burns, in which the courts have found that carjackings [occurred when the owner was forced to give up his car keys at an inside location and the car was taken from an outside location.

In the present case, the elements of carjacking were established. Defendant took possession of Gibeson's car by threatening her and demanding her car keys. Although she was not physically present in the parking lot when he drove the car away, she had been forced to relinquish her car keys. Otherwise, she could have kept possession and control of the keys and her car. Although not the "classic" carjacking scenario, fn. 44 it was a carjacking all the same.

We reverse the convictions for aggravated kidnapping but affirm the carjacking and armed robbery convictions.

Ward J., concurred.

CONCURRING AND DISSENTING OPINION:

RAMIREZ, P. J., Concurring and Dissenting

Based on a misunderstanding of the law governing the asportation element of aggravated kidnapping, the majority overturns implied findings of fact by the jury that the movement of these victims was not incidental to the robberies and that movement increased their risk of harm.

The majority starts its analysis of the "not incidental" prong with Daniels. Therefore, I will too.

It is important to note that Daniels involved three kidnappings for only the crime of robbery. In each case, the victim was moved in order for the fruits of the robbery to be obtained. As the majority notes, the Daniels court held, "[D]efendants had no interest in forcing their victims to move just for the sake of moving; their intent was to commit robberies and rapes, and the brief movements [18 feet, 5 to 6 feet and 30 feet] which they compelled their victims to perform were solely to facilitate such crimes. It follows, a fortiori, that those movements were 'incidental to' the robberies ...

In Cotton, the California Supreme Court had held that movement which was "natural" to the target offenses was incidental to it.

The majority next discusses Earley, noting its holding, "Since the movement ... [10 to 13 blocks] was substantial, it was not '... incidental to the commission of the robbery ...' even though it may have been solely to facilitate the commission of the robbery." However, in concluding that the movement here was incidental to the robberies, the majority states, "[The] movement of the [victims] served only to facilitate the crime with no other apparent purpose." This clearly contradicts Earley's holding.

The majority goes on to conclude that footnote 11 of Earley "qualifies" its holding. (That footnote begins, "There is no merit to an assertion ... that 'when the robber's intent is solely to facilitate the [robbery the movement is merely incidental' thereto within the meaning of Daniels.... [C]ases contain[ing] language ... tending to support [this] assertion ... reflect a misconception of the first prong of the Daniels test in that they fail to take into consideration whether the movement was brief ...." In other words, just because the robber could not have accomplished the crime in the manner he intended without the movement does not necessarily make the movement incidental. Contrary to the majority's conclusion, this language is entirely consistent with the holding in Earley, which ignores whether the movement "may have been solely to facilitate the ... robbery" and focuses on the distance the victim was moved.

The Earley footnote goes on to state, "Other cases contain language suggesting that movement is not '... incidental' to a robbery where the movement is 'necessary' or 'essential' to the commission of the robbery or 'an important part of [the defendant's] criminal objective, without [which] the crimes would not have been committed.' ... Although one definition of 'incidental' is 'nonessential' ... that manifestly was not the sense in which the word ... was used in Daniels. Movement across a room to facilitate a robbery might be essential to the commission of the robbery but be incidental thereto within the meaning of Daniels. Insofar as such cases are inconsistent with the views expressed herein they are disapproved." In other words, the defendant's intent to commit the kidnapping as, in his or her mind, a necessary component of the target offenses is not determinate of whether the movement is incidental. Contrary to the majority's conclusion, this portion of the footnote did not qualify the holding. It is entirely consistent with the latter's focus on the distance traveled, rather than the intended purpose of the movement.

Finally, the majority cites People v. Rayford (1994) 9 Cal.4th 1 [36 Cal.Rptr.2d 317, 884 P.2d 1369] (Rayford), whose holding deserves reiteration here, "As for ... whether the movement is merely incidental to the crime of robbery, the jury considers the 'scope and nature' of the movement. This includes the actual distance a victim is moved. However, ... there is no minimum number of feet a defendant must move a victim in order to satisfy th[is] ... prong. In addition, we have since Daniels ... consider[ed] the context of the environment in which the movement occurred. ... [?] In Daniels, we ... stated ... , 'We do not imply that the ... [movement of the victim 15 feet] [is] controlling, i.e., that movements of th[at] scope and nature ... could not support a conviction under [Penal Code] section 209 if the defendant's intent] was to commit robbery. Such a case, when and if it arises, must be decided on its own facts....' [Citation.]" (Id. at pp. 12-13.) According to Rayford, then, the amount of distance traveled, while remaining a valid consideration, is not the only one, but, rather, is part of the larger consideration of the scope and nature of the movement and the context of the environment.

Relying on a non-legal-dictionary definition of "incidental," the inappropriateness which I have already addressed the majority criticizes the holdings in Salazar, a decision of Division One of this court, and Shadden, an opinion from the Second District, Division Six, equating "incidental" with "necessary." Although the majority fails to say so, these two are not the only cases equating the two terms. Division Two of the Second District did the same in People v. Smith (1995) 33 Cal.App.4th 1586, 1594 [40 Cal.Rptr.2d 31], as did Division Five of that court in People v. Diaz (2000) 78 Cal.App.4th 243 [92 Cal.Rptr.2d 682] (Diaz). I assume that the majority singles out Salazar and Shadden because the distances traveled in those cases (29 feet and nine feet) were considerably shorter than that here. However, they also missed People v. Jones (1999) 75 Cal.App.4th 616 [89 Cal.Rptr.2d 485] (2d Dist., Div. 4) (Jones) in which the victim was moved 10 feet less than these victims.

The majority offers no sound reason why the equating of "incidental" and "necessary" is insupportable. To the extent the majority suggests it conflicts with footnote 11 of Earley, it is incorrect. As stated before, that footnote addresses the defendant's intent, whereas Salazar and Shadden focus on whether the movement was beyond the bare minimum required to accomplish the target crime. Certainly, the equation is not inconsistent with Cotton's notion that movement which is natural to the target offense is merely incidental to it.

Moreover, despite the majority's implication otherwise neither case relied exclusively on the equation of "incidental" and "necessary" to support its conclusion that the distance traveled was not incidental. Salazar held, "In Cotton, ... [t]he [California Supreme C]ourt concluded [that] the kidnapping charge was unsupported because the movement was 'natural' under the circumstances of the assault and thus incidental. [Citation.] [?] ... In contrast to Cotton, the movement [here] was not natural to the crime. Salazar could have raped [the victim] on the walkway outside the motel room door and avoided moving her at all. The movement of [the victim] was not necessarily related to the rape crime itself; rather, a jury could reasonably conclude it was an essential part of Salazar's plan to] avoid detection and to make the crime easier to commit... [?] ... [T]he jury could find the movement crossed significant boundaries (from the public walkway into the motel room bathroom) and was not a necessary or a natural part of committing the rape. Thus, the movement was not incidental to the crime." (Salazar, supra, 33 Cal.App.4th at p. 347.) As is clear from the foregoing, Salazar did not rely exclusively on whether the movement of the victim was necessary or essential to the commission of the rape. It relied also on the crossing of significant boundaries, a point the majority does not assail as an improper consideration in assessing the scope and nature of the movement and the context of the environment under Rayford.

Similarly, Shadden did not rely exclusively on its equation of "necessary" and "incidental." It also held, "[The defendant] pulled off [the victim's] panties and pulled down his zipper after he dragged her to the back room and shut the door [but before taking four videotapes]. The jury could reasonably infer that the movement was not incidental to the attempted rape because [the defendant] only began the sexual attack after he moved her. [?] ... Where movement changes the victim's environment, it does not have to be great in distance to be substantial. [Citation.] [The defendant] slugged [the victim] and dragged [her] nine feet from an open area to a closed room. From these facts the jury could reasonably infer that the distance was substantial for [the victim] and it changed her environment." Clearly, the Shadden court based its conclusion that the movement was not incidental on more than the basis the majority criticizes, and those remaining reasons are both unassailed by the majority and unassailable.

In Diaz, the court noted, "[R]elatively short distances have been found not to be incidental where the movement results in a substantial change in 'the context of the environment.' " The defendant in Diaz had moved the rape victim "at least 150 feet" from a spot next to a sidewalk bordering on a busy city street to behind a closed building in a darkened park. Relying on Rayford, Jones and Salazar, the Diaz court concluded that the movement was not incidental, thusly: "The defendant could have sexually assaulted the victim in the sidewalk area where he first accosted her .... He quite obviously moved [her] in order to complete the attack and to avoid detection. The scope and nature of the movement dramatically changed the environmental context. [?] We note the present case provides a good illustration of the distinction between incidental and nonincidental movements.... [T]he ... defendant had [initially] attacked the ... victim on a grassy strip immediately adjacent to the sidewalk [perhaps near where he had first accosted her], in full view of a major urban street. The movement from the sidewalk to the grassy strip could easily be characterized as incidental, in that it effected no substantial change in the surroundings, and may have been a short distance from where the defendant first made contact with the victim. However, the forcible movement of the victim into the darkened park and behind a large building was properly found by the jury to have been more than incidental to the sexual assault." (Diaz, supra, 78 Cal.App.4th at pp. 248-249.) It is interesting to note that Diaz echoes the reliance of Salazar on the fact that the underlying crime could have been accomplished without the movement.

However, regardless of whether "incidental" and "necessary" may properly be equated, the question to be answered here is whether there was a sufficient basis upon which this jury could reasonably conclude that the movements of the victims were not incidental to the robberies. I believe there was. The victims were moved from the showroom of a jewelry store, openly accessible to customers, fronted by large windows, within view of the general public, to a five-foot by five-foot office in the rear that had a window into the showroom from which one could look out, but not in. The majority notes that the victims were moved 50 feet. Although the victims could not recall if Hoard closed the door to the office after first putting them in there, after he reentered it when the cell phone dropped, he slammed the door shut as he left to resume the taking of jewelry from the showroom counters. Before leaving the office, he destroyed the only phone he believed to be present. These facts constituted more than a sufficient basis upon which this jury could reasonably conclude that the scope and nature of the movement (Rayford, supra, 9 Cal.4th at p. 12) and the changed context of the victims' environment (ibid.) were such that the movement was not incidental to the robberies.

The majority also overturns the jury's implied finding of fact that the movement increased the risk of harm to the victims over and above that necessarily present in robbery. To reiterate, this prong of the asportation element includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempt to escape, and the attacker's enhanced opportunity to commit additional crimes. (Rayford, supra, 9 Cal.4th at p. 13.)

We begin by noting that the majority concludes that the movement did not "substantially increase the risk of harm." added.) However, as the majority earlier noted (maj. opn., ante, at p. 602), Penal Code section 209 does not require that the increase in risk be substantial, nor did the instructions given this jury.

In Rayford, the California Supreme Court held, "[The victim] was forcibly moved ... at night from a parking lot of a closed store to the other side of a wall located at the edge of the lot. She was forced to sit against the wall and beside a small tree, 34 feet from the street. The wall blocked the view of any passersby from the parking lot side, and the tree and bushes at the end of the wall limited detection of [her] from the street. While the area beyond the wall bordered on a two-lane street, it was underdeveloped, and made up of dirt and rocks. Finally, ... [t]here is no evidence as to whether [the defendant and the victim] were detectable from the street. [?] The jury could reasonably have concluded that [the victim's] forcible movement ... substantially increased her risk of harm." (Rayford, supra, 9 Cal.4th at p. 23.)

I note that an increased risk of harm is consistently upheld where the defendant is armed during the movement of the victim. (See, e.g., People v. Lara (1974) 12 Cal.3d 903, 908 [117 Cal.Rptr. 549, 528 P.2d 365]; Earley, supra, 14 Cal.3d at p. 131.)

I recognize, as does the majority that California Supreme Court cases that predated Rayford held that the removal of the victim from public view in itself does not substantially increase the risk of harm. (People v. Stanworth (1974) 11 Cal.3d 588 [114 Cal.Rptr. 250, 522 P.2d 1058]; In re Crumpton (1973) 9 Cal.3d 463, 467 [106 Cal.Rptr. 770, 507 P.2d 74].) However, a substantial increase in the risk of harm is no longer required. Additionally, as is clear from my research, the law on the asportation element has evolved over the years. I also note that Rayford's reliance solely upon the isolation of the victim caused by the movement was echoed in Diaz, supra, 78 Cal.App.4th at page 249, and Salazar, supra, 33 Cal.App.4th at page 348.

However, the isolation of the victims here was not the only factor upon which this jury could rely in finding that the movement increased their risk of harm. In Jones, supra, 75 Cal.App.4th at page 630, the court noted that "[a]n increased risk of harm was [also] manifested by [the defendant's] demonstrated willingness to be violent, having knocked [the victim] to the ground [and] gripped her mouth so tightly as to leave a burn mark on her ] face, and grabb[ing] her [when she tried to escape after the kidnapping began]." Here, like in Jones, Hoard demonstrated a willingness to be violent. When he suspected that the victims were trying to use the phone to summon help, he became angry, pulled the phone off the wall and smashed it on the ground, then slammed shut the door to the office. Additionally, by immobilizing the victims by duct-taping their wrists and ankles, he increased the opportunity to commit additional crimes against them.

Finally, in People v. Nguyen (2000) 22 Cal.4th 872 [95 Cal.Rptr.2d 178, 997 P.2d 493], the California Supreme Court held that the increased risk of harm necessary for aggravated kidnapping could be psychological harm. The jury here was so instructed. The victims testified that Hoard asked them if they had families and told them that if they wanted to see their loved ones again, they had better cooperate with him. He used obscenities when threatening to kill them. He threatened them again after he suspected they had tried to use the phone. Both were hysterical and either screaming or crying immediately after the crimes. Neither wanted to work at a jewelry store again. One of the victims testified at trial, "I thought the second this even started that ... that was it. It was over. Just that fast, I thought. I had no idea what was gonna happen." Under the circumstances, the jury could reasonably conclude that the movement of the victims to the office also increased the risk of mental harm

CHAPTER NINE

You Decide 9.1: CARTER V. COMMONWEATLH. 694 S.E.2d 590 (Va. 2010).

Goodwyn, J.

Issue

In this appeal of a conviction for grand larceny, we consider whether asportation and assertion of ownership of property is sufficient to prove intent to steal that property.

Jack Edward Carter was indicted by a Henrico County grand jury for stealing paint from a home improvement supply store (the store), in violation of Code § 18.2-95. Carter asserted at trial and in the Court of Appeals that the Commonwealth failed to prove he intended to steal the paint. At the conclusion of a bench trial, the circuit court convicted him of grand larceny and fixed his punishment at incarceration for a term of three years with the execution of two years and six months suspended. ….Carter appeals.

Facts

On August 22, 2007, Jack Edward Carter and his friend Tracy Browning traveled by truck, with several other individuals, to a home improvement supply store in Henrico County. Pursuant to a pre-determined plan, Carter entered the store and placed four 5-gallon buckets of paint, valued at $ 398.92, in a shopping cart. Browning waited outside for a few minutes and then followed Carter into the store. Browning waited for Carter by the "returns" desk, where customers could take items, previously purchased from the store, for a refund of the purchase price. Carter approached Browning and gave her the shopping cart containing the buckets of paint. As planned, Browning represented that the paint had been previously purchased from the store and requested payment for its return. LeDawn Sawyer, an assistant store manager who was called to approve the return, recognized Browning as someone she had been alerted to look for. Sawyer obtained Browning's identification card and contacted a loss prevention employee, who summoned the police.

Police officers arrived at the store and spoke with Browning. Browning acknowledged the details of the plan she and Carter had made to seek a refund payment for paint that neither she nor Carter had purchased from the store. Browning admitted that "the deal was supposed to be that Mr. Carter was supposed to go into the [store], get some paint, bring it out somewhere [near] the refund desk. [Browning was] to go to the refund desk and ask for a refund on the paint." There was no plan as to what she would do with the paint if the store refused to give her a refund.

The police officers received information from Browning regarding Carter's location and went to arrest him. Carter tried to flee, but the police officers apprehended him.

At the conclusion of the Commonwealth's evidence, Carter moved to strike the Commonwealth's evidence on the basis that the Commonwealth failed to prove that he and Browning intended to steal the paint. The circuit court denied the motion. Carter did not present any evidence, and renewed his motion to strike, which the court denied.

Reasoning

Carter argues that, as a matter of law, the evidence presented by the Commonwealth was not sufficient to find him guilty of grand larceny because the Commonwealth failed to prove he had an intent to steal the paint. The Commonwealth claims that the asportation of the paint by Carter, and the assertion of ownership of the paint, pursuant to his plan, is sufficient evidence to support a finding that Carter intended to steal the paint so that it could be returned to the store for a refund.

Carter does not dispute that there was asportation of the paint by him, nor does he dispute that he and Browning were working together and that each is criminally responsible for the actions of the other. His sole assignment of error concerns the allegation that the scheme he was involved in with Browning did not involve stealing the store's paint because, after asserting ownership of the paint, he and Browning planned to relinquish the paint upon receiving payment from the store, without removing the paint from the store. He notes there was no agreement as to what would be done with the paint if the store did not pay the refund.

In Virginia, larceny is a common law crime. We have defined larceny as "'the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently.'" Stated simply, larceny requires that there be a taking and asportation of the seized goods, coupled with an intent to steal those goods. "The defendant's intent to steal must exist at the time the seized goods are moved."

We have stated that "[i]ntent is the purpose formed in a person's mind at the time an act is committed." "Intent may, and often must, be inferred from the facts and circumstances of the case, including the actions of the accused and any statements made by him." It is undisputed that at the time he picked up the paint, Carter intended to have his accomplice assert ownership of the store's paint without paying the store for that paint, and to ask the store to pay for its return. True to their scheme, Carter's accomplice moved the paint, represented ownership of that paint to the store's employee, and requested a refund payment.

Common law larceny requires a trespassory taking. Carter, in essence, asserts that there was no trespassory taking and intent to permanently deprive the store of its paint because his scheme did not involve the paint being at any time physically removed from the store. At the core of Carter's defense is the issue of what constitutes sufficient possession and asportation to sustain a conviction for larceny from a self-service retail store.

A trespassory taking is a taking or removal of possession of property from the owner with felonious intent; a violation of an owner's possessory right constitutes a trespassory taking. Because every customer in a self-service store has implied permission to move merchandise, placed on open display, unconcealed about the premises of the store, the trespassory taking and carrying away of the merchandise of another does not usually occur at such a store when the property is moved on the premises. If, however, there is some conduct by the customer which makes the customer's possession clearly adverse to the store, there is a trespassory taking.

A trespassory taking is most easily proven by a defendant leaving the store without paying for merchandise. However, removal of the targeted property from the owner's premises is not required for there to be a trespassory taking, and permanent loss by the owner is not a required element of larceny. . .."One may be said to have taken another's property by trespass though he has not removed it from the other's premises or from his presence." If the defendant does not leave the premises, the evidence must establish that the defendant in some way, within the store, exercised trespassory possession of the goods inconsistent with the owner's rights.

The representation of ownership of the store's paint by Carter's accomplice was an exercise of possession clearly adverse to the store and inconsistent with the store's right to its paint. It is also evidence of his accomplice's immediate dominion and control of the paint. The assertion of ownership in seeking a refund was evidence of and, in fact, confirmed that there had been a trespassory taking of the paint, and it evidenced an intent to deprive the owner thereof permanently.

The trespassory taking, evidenced in the instant case by asserting ownership, is no different than a trespassory taking by walking out of the store without paying for the paint. At the point ownership of the paint was asserted, there was evidence that Carter and his accomplice had taken the store's paint just the same as if they had walked out of the store with that paint. Where there is evidence that an individual has acted in a manner that is inconsistent with that of a prospective purchaser, and has exercised immediate dominion and control over the property, despite his continued presence within the owner's store, such conduct establishes sufficient possession to constitute larceny. When one wrongfully takes property of another with intent to deprive the owner thereof, larceny is complete, though the accused afterwards abandons it.

"One who takes another's property intending at the time he takes it to use it temporarily and then to return it unconditionally within a reasonable time - and having a substantial ability to do so - lacks the intent to steal required for larceny." An intent to return, however, must be unconditional. Thus it is no defense to larceny that the taker intends to return the property only if he should receive a reward for its return, or only upon some other condition which he has no right to impose. According to their scheme, Carter and his accomplice intended to return the paint upon receipt of a payment for returning it, a condition which they had no right to impose.

Holding

We hold that the Court of Appeals did not err in concluding that the evidence was sufficient to support Carter's conviction. For the foregoing reasons, the judgment of the Court of Appeals is affirmed.

Millette, J. with whom Koontz, J. joins dissenting

Larceny requires an intent to deprive the owner of its property permanently. I disagree with the majority's statement that the essence of Carter's argument is that there was no trespassory taking and intent to permanently deprive the store of its property because the paint was never physically removed from the store. Rather, Carter's argument is that he never had the intent to keep the paint, and thus never intended to permanently deprive the owner of the paint. Carter's intent was to use the paint as a vehicle in his scheme to defraud the store of the value of the paint. According to the evidence, the gravamen of Carter's offense was not the larceny of the paint, but obtaining a fraudulent refund for the paint, constituting the crime of obtaining money by false pretenses. The elements of false pretenses are:

(1) an intent to defraud; (2) an actual fraud; (3) use of false pretenses for the purpose of perpetrating the fraud; and (4) accomplishment of the fraud by means of the false pretenses used for the purpose, that is, the false pretenses to some degree must have induced the owner to part with his property.

The evidence in this case could only establish that Carter, with the aid of Browning, was attempting to commit the crime of obtaining money by false pretenses. Both the Commonwealth and the circuit court clearly understood that there was never any intent to permanently deprive the store of the paint. The only intent was to fraudulently obtain the refund money by means of the false pretense that Browning had previously purchased the paint and was entitled to a refund.

In addition, there is no evidence to support a finding that Carter intended to take the paint and return it only in exchange for a refund. The Court of Appeals erred when it presumed that the circuit court concluded that Browning would have removed the paint from the store if she did not obtain a refund, because the evidence presented by the Commonwealth was that there was no intent by either Carter or Browning to ever take the paint out of the store. Browning testified that she did not know what she would have done if a return was refused, because that was not the scheme, and she and Carter had only discussed her obtaining the refund. There was no evidence of any intent to keep the paint, such as a need for the paint or even the means of removing the paint from the store. In fact, Carter was down the street in a bar waiting for Browning to come to him with the refund money. The Commonwealth never argued that Browning intended to keep the paint and, in fact, attempted to amend the indictment to indicate that money, instead of the paint, was the subject of the larceny. The Commonwealth argued that the property stolen in the larceny was the refund money. The circuit court never found an intent to permanently deprive the store of the paint because the court found that the intent was to steal money using the paint as a vehicle to get a refund.

You Decide 9.2: Sonnier v. State, 849 S.W.2d 828 (Tex.App. 1992).

The essential elements of theft by receiving are: (1) that a theft occurred by another person; (2) the defendant received the stolen property; and (3) when the defendant received the stolen property she knew it was stolen. Under the statute and the indictment, the State had the burden to prove beyond a reasonable doubt, that appellant had actual subjective knowledge that the speakers were stolen. The evidence, viewed in the light most favorable to the prosecution, shows:

- On the same day the speakers were stolen, two men brought them to a pawn shop to hock them.

- When the pawn shop refused to accept the speakers because neither man would offer identification, the two men left, and then returned with appellant.

- Appellant pawned the four speakers for the two men. She used her driver's license, giving her correct name and address. She received $ 225 for the four speakers, about $ 56 for each, while they were worth at least $ 350 each.

The State emphasized in the trial court, and on appeal, that the sheer value of the speakers is enough for the trial court to find appellant knew they were stolen. The State argues that selling stolen property for less than market value is some evidence that the seller knew the property was stolen. However, here the speakers were pawned, not sold, and the evidence does not indicate that the pawn shop paid an unusually low amount to pawn the speakers. Further, the evidence does not show that appellant, or any reasonable person of common experience, would likely even know the market value of the speakers. We cannot say that the circumstances in this case exclude every other reasonable hypothesis except the hypothesis that appellant knew the speakers were stolen when she pawned them. We find, under the circumstances, appellant just as reasonably could have been doing a favor for her friends or acquaintances when she accompanied them to the pawn shop and used her own ID so the speakers could be pawned.

Appellant was in possession of the speakers when she pledged them at the pawn shop. This was a distinct and conscious assertion of a right to the property. She pawned the speakers on the day they were stolen, a "recent" possession. The explanation for appellant's possession of the speakers came from the State's witnesses, as well as appellant's. The evidence is uncontradicted that two men possessed the speakers and tried to pawn them. It was only when the two men were not allowed to pawn the speakers that they left, and then returned to the same pawn shop accompanied by appellant. The explanation for appellant's possession or control over the speakers is clear and uncontested - the two men requested her help in getting the speakers pawned. There is no evidence of what the two men told appellant in order to get her help. We find nothing in the record to contradict the hypothesis that appellant may have believed the speakers belonged to one of the two men. There is not one shred of evidence placing appellant at the complainant's club at the time the speakers were removed; the evidence, instead, points only to complainant's prior employee, Burton, as the likely thief.

You Decide 9.3: United States v. McGovern, 661 F.2d 27 (3rd Cir. 1981).

Common law forgery has three elements: (a) The false making or material alteration (b) with intent to defraud (c) of a writing which, if genuine, might be of legal efficacy. McGovern and Scull contend that under the facts, the first element cannot be established. They rely on the common law precept that authority to sign another's name to a written instrument negates a charge of forgery regardless of fraud or falsehood in the transaction. Whatever validity this argument may have in other contexts, we do not believe that those cases control a traveler's check transaction.

The purchaser's agreement to sign each traveler's check at the time of purchase and to counter-sign the checks only in the presence of the person cashing them, in our view, invalidates his attempt to authorize another to sign his name. Traveler's checks are unique….These instruments are negotiated freely because of the assured credit of the check issuer and relative ease of determining signature validity. The traveler's check contract clearly denies the purchaser the right to authorize another to sign for him or her.

Moreover, under the facts presented here, the businesses cashing the checks were deliberately deceived into believing that the person signing the checks was the purchaser. They, as much as Citibank, were defrauded in the transaction because Scull was impersonating McGovern. This case, therefore, differs from cases in which the person accepting the instrument was informed of the purported authorization. If the authorization was valid, there would be no forgery and no defrauding of the cashing person. Of course, a person who cashes a traveler's check in those circumstances is on notice that the issuer of the check may refuse to honor the instrument because of an invalid signature. But the knowledge of the cashing person that the person signing is acting in a representative capacity negates a charge of forgery. When the person signing the traveler's checks is an imposter, however, his unauthorized signature on a traveler's check, when accompanied by an intent to defraud, constitutes common law forgery.

McGovern, the purchaser of the traveler's checks, knew the effect his actions would have on Citibank and on the business cashing them, indeed, appellants conceded that this was the sole purpose of having Scull sign the checks. Scull was an imposter and possessed no authority to sign the checks because McGovern could not grant him this authority. When coupled with the appellants' intent to defraud, the unauthorized signature on the otherwise legally sufficient instruments constituted common law forgery. The elements of the offense having been established, the court concluded that the convictions must stand (text taken directly from judgment of the court ).

You Decide 9.4: Messina v. State, 728 So. 2d 818 (Fla. Dist. Ct. App. 1999).

Issue

The defendant, Karl C. Messina, appeals his conviction for the crime of robbery. He contends that the evidence is sufficient to support only the lesser crime of petit theft because there is no proof that he used force against the victim in taking her property. We conclude that the evidence is sufficient to support the main charge of robbery because the record shows that the defendant used force to retain the victim’s property once he had taken it from her. Therefore, we affirm.

Facts

On December 14, 1996, Elaine Barker was in the parking lot of a K-Mart store unloading items from a shopping cart into the trunk of her car. She left her purse in the shopping cart, and while she was transferring the items she had purchased, the defendant came over, grabbed the purse, and ran away. Barker chased the defendant on foot and caught up with him, but by that time, he had gotten into his car and closed the door. Barker then sat on the hood of the defendant’s car, thinking that would prevent him from driving away. Instead, the defendant started and stopped the car several times while Barker held on to a windshield wiper to keep from falling off. The defendant turned the car sharply causing Barker to fall to the ground. As a result of the fall, Barker suffered a broken foot and lacerations that required stitches.

Based on these facts, the State charged the defendant with the crime of robbery. At the close of the State’s case in chief, the defendant moved for a judgment of acquittal, contending that the evidence was sufficient to sustain only the lesser included charge of petit theft. The trial court denied the motion and sent the case to the jury on the charge of robbery. The jury found the defendant guilty as charged, and he was convicted and sentenced for the crime of robbery.

Reasoning

The defendant contends that his conviction must be reversed because there is no evidence that he took the victim’s purse by force. It is true, as the defendant argues, that a purse snatching is not a robbery if no force was used other than that necessary to take the victim’s purse. In the present case, however, the charge of robbery was not based on the force used to remove the property from the shopping cart but rather on the force subsequently used against the victim once she tried to regain possession of her property. The question is not whether force was used but when it was used in relation to the taking.

A conviction for the crime of robbery requires proof that money or other property was taken from the victim and that the offender used force or violence “in the course of the taking.” The temporal relationship between the use of force and the taking of the property is addressed in section 812.13(3)(b), which provides that “an act shall be deemed ‘in the course of the taking’ if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.” As this definition reveals, the statute is not limited to situations in which the defendant has used force at the precise time the property is taken.

On the contrary, section 812.13 . . . incorporates the modern view that a robbery can be proven by evidence of force used to elude the victim or to retain the victim’s property once it has been taken. The rationale for this view is that the force used in the flight after the taking of property is no different from that used to effect the taking. As explained in the Comments to the Model Penal Code, “the thief’s willingness to use force against those who would restrain him in flight suggests that he would have employed force to effect the theft had the need arisen.” . . . Florida courts have held that the crime of robbery can be proven by evidence that the defendant used force against the victim after the taking has been completed. . . . The common feature of these cases is that in each case, there was no break in the chain of events between the taking and the use of force.

Holding

In the present case, the defendant used force against the victim immediately after he had taken her property and while she was attempting to get it back. The force was used as a part of a continuous set of events beginning with the removal of the victim’s purse from the shopping cart and ending with the victim’s fall from the hood of the defendant’s car. There was no interruption that would lead us to conclude that the subsequent battery on the victim was a new and separate offense. . . . Here, the taking and the use of force were part of the same offense.

The defendant suggests that the evidence is not sufficient to sustain his conviction for robbery because the injury to the victim was not foreseeable. He argues that it was unreasonable to expect that the victim would place herself in danger by sitting on the hood of his car. The short answer to this point is that the defendant was not obligated to drive the car away. In any event, we decline to engraft concepts of tort law onto the statutory elements of robbery. Whether the defendant could have anticipated the victim’s reaction is irrelevant. Likewise, whether the victim would have been wiser to allow the defendant to drive away with her property is irrelevant. The robbery statute merely requires proof that the force and the act of the taking were part of a “continuous series of acts or events.” That was proven here.

You Decide 9.5: STATE V. HOLT. 2015-NMCA 973 (2015). 352 P.3d 702. (NM. App.)

BUSTAMANTE, Judge.

Anthony Holt (Defendant) was trying to remove a window screen from Carolyn Stamper's (Stamper) home when he noticed her through the window. Although he turned and left the premises without breaching the window, he was convicted of one count of breaking and entering and now appeals on two grounds. First, he argues that the Legislature did not intend to punish as breaking and entering an intrusion into the space between the screen and the window. Second, he maintains that the evidence was insufficient for the jury to conclude that he in fact entered that space. We affirm.

Stamper, a resident of Las Cruces, New Mexico, was relaxing on her sofa one December afternoon when she heard the doorbell ring and a rustling sound at the front door. She did not see anyone through the peephole in the door. She then heard a "metal on metal" sound at the window, which was approximately seven feet from the front door. The window was open approximately four inches because Stamper's "smelly old dog" was in the room with her. The curtains over the window were drawn except for a gap of about four inches. Through the gap, Stamper could see a man at the window who was working to remove the aluminum window screen. The screen was halfway removed from the window and the man was trying to get the screen free of the track at the bottom of the window frame. At trial, Stamper agreed with the State that while holding the screen, the man's "fingers were . . . in that area between the window and the screen[.]"

After a few seconds, the man looked up and noticed Stamper. He said, "Oh, I'm sorry," then turned and left. As he was leaving, Stamper told him, "You better be sorry, you thief[.]" Stamper testified that the screen "was pretty well destroyed" and had to be replaced. She also testified that she was frightened by the incident and that it "was the first time [she] had been confronted with this in [her] own home."

A jury convicted Defendant of one count of breaking and entering, Additional facts are provided as necessary to our discussion.

Defendant makes two arguments on appeal. First, he argues that the facts of this case do not fit within a breaking and entering charge, because entering the space between a screen and a window is not the same as entering the interior of a home or structure. Second, he argues that the evidence was not sufficient to support a conclusion that Defendant entered the space between the screen and window. We address these arguments in turn.

Defendant argues that, even if his fingers were between the screen and the window, he cannot be convicted of breaking and entering. Defendant makes two contentions: (1) the plain language of the breaking and entering statute requires entry into the interior of a structure, i.e., entry beyond the last barrier to the structure's interior; and (2) the breaking and entering statute is ambiguous because it does not define the boundaries of a structure, and thus, under the rule of lenity, must be construed against the State. We interpret these arguments as alternatives because the rule of lenity applies only if, after examination of the plain language and other tools of statutory construction, the statute remains ambiguous. ("A statute is ambiguous for the purpose of the rule of lenity only if reasonable doubt persists about a statute's intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute." (internal quotation marks and citation omitted)). After examining the statute's language and purpose, as well as cases interpreting it and similar statutes, we conclude that Defendant's conduct falls within that which the Legislature sought to punish. Based on our construction of the statute, we conclude that it is not ambiguous such that the rule of lenity applies. Hence, we need not address Defendant's second argument.

Section 30-14-8(a) defines "breaking and entering" as the unauthorized entry of any . . . dwelling or other structure, movable or immovable, where entry is obtained by fraud or deception, or by the breaking or dismantling of any part of the . . . dwelling or other structure, or by the breaking or dismantling of any device used to secure the . . . dwelling or other structure.

  [9] As it relates to the facts here, UJI 14-1410 NMRA requires the jury to find that (1) "[t]he defendant entered [the structure] without permission" and (2) "[t]he entry was obtained by" breaking or dismantling a part of the structure. Unlike in some other states' statutes, neither the breaking and entering statute nor the burglary statute states what delimits a structure. In State v. Office of Public Defender ex rel. Muqqddin, the Supreme Court relied on the absence of such language in the burglary statute to reject the idea that entry into a part of a structure is equivalent to entry into the structure itself, stating that "the Legislature has given no indication that it intended." While the breaking and entering statute provides that a breaking may be accomplished by "breaking or dismantling any part of the . . . dwelling or other structure," the "Relative and qualifying words, phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to or including others more remote." (alterations, internal quotation marks, and citation omitted)). We conclude that the plain language of the breaking and entering statute sheds little light on the Legislature's intent as to the issue before us: whether the space between a window screen and an open window is protected space under the statute.

We next examine the purposes of the breaking and entering statute to determine whether the conduct here falls within the harm the Legislature sought to prevent. Because "New Mexico's breaking-and-entering statute is itself grounded in common law burglary[,]" cases interpreting the burglary statute inform our analysis. Possessory rights, however, "go beyond the mere right to physical possession of an object" and include the right to exclude, privacy interests, and "security of habitation." "It is the invasion of privacy and the victim's feeling of being personally violated that is the harm caused by the modern burglar, and the evil that our society is attempting to deter through modern burglary statutes."

"[I]n order for an area to be considered prohibited space under [the burglary statute], it must have some sort of enclosure.". "[I]t is this enclosed space that the Legislature intended to protect." The burglary statute defines prohibited space as "any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable[.]" . The breaking and entering statute includes the same list.. In both statutes, the spaces in which possessory, privacy, and security interests are implicated are delineated by an enclosure..

Our question thus becomes whether a window screen forms an enclosure such that penetration beyond the screen is sufficient for entry of a structure. :[I]n general, the roof, walls, doors, and windows constitute parts of a building's outer boundary, the penetration of which is sufficient for entry." But other types of boundaries might also suffice because "[i]t is the nature of the enclosure that creates [prohibited space]." "'[T]he proper question is whether the nature of a structure's composition is such that a reasonable person would expect some protection from unauthorized intrusions.' Relying in part on this test, the Muqqddin Court concluded that "a vehicle's gas tank and wheel wells do not constitute protected space under [the burglary statute]." No New Mexico court since Muqqddin has used this test to address the legal question here. However, in Nible, the case from which the test was derived, the California Court of Appeals stated that "the focus of the question whether the penetration of a [partially open] window screen constitutes a burglarious entry must be on whether a reasonable person would believe a window screen provides some protection against unauthorized intrusions.". It found that the answer to this question "is unequivocally in the affirmative." It went on to state that the screen door [or window] is not to be considered as a mere protection against flies, but rather as a permanent part of the dwelling. The holdings [in case law] proceed, it would seem, on the grounds that the screen door [or window] is a part of the house on which the occupants rely for protection and that to open such a door [or window] is a violation of the security of the dwelling house which is the peculiar gravamen of a burglarious breaking.

It concluded that "when a screen which forms the outer barrier of a protected structure is penetrated, an entry has been made for purposes of the burglary statute." . We note that the Nible court found this analysis "especially apposite to the [facts in that] case, where the window screen was affixed in a slot in the frame with no handle or other device to facilitate its removal from the exterior of the apartment." Here, Stamper testified that removal of the screen required use of a screwdriver or knife and that it was "not . . . a snap" to remove. In addition, in Nible, like here, the window behind the screen was partially open and the residence's occupants were inside.

Similarly, in Valencia, the Supreme Court of California relied on a slightly different formulation of the test to conclude that "penetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute even when the window itself is closed and is not penetrated.". The Court stated:

window screen is clearly part of the outer boundary of a building for purposes of burglary. A reasonable person certainly would believe that a window screen enclosed an area into which a member of the general public could not pass without authorization. . . . [W]indow screens, which announce that intrusion is unauthorized, do not limit their message to flies but extend it to burglars as well.

Other courts examining similar circumstances have reached similar conclusions. For example, in Commonwealth v. Burke, the Massachusetts Supreme Court stated that "[it could] find no support at common law for the view . . . that . . . an entry must be accompanied by a removal of all remaining barriers (i.e., the inner window) for it to be actionable" and held that "the more common view is that outer window coverings should be treated as part of the dwelling itself, and any entry beyond them, no matter if further impeded by additional window coverings, should be punished. It concluded that, therefore, "[e]vidence that the defendant placed his hand between the broken storm window and the inner window would be sufficient to warrant a finding of an entry under [the Massachusetts burglary statute]." . The South Carolina Supreme Court held in State v. Chappell that a screen covering a window "was more than a mere protection against flies and mosquitoes; it was an enclosing part of the dwelling house" and that where the defendant "tor[e] away" the corner of the screen and "inserted his hand through the hole thus made and raised the window sash[, t]his was not only a breaking, but was an entry sufficient in law to constitute burglary (examining "whether the 'external boundar[y]' of the structure, as that phrase is used in the Arizona's burglary statute], is the exterior of the door, or whether a person or instrument must penetrate past the door in order to enter the structure" and holding that "a person must penetrate whatever forms a structure's outer boundary—a door, window, or wall, for example—but need not go further to have entered the structure.") (stating that a "breaking" sufficient for burglary "includes the putting aside of any material part of the building intended as a security against invasion, such as removing a window screen."

[Defendant points to cases using the term "interior" in their analyses of "entry" to support his contention that the breaking and entering statute requires some further penetration into the structure than occurred here. For example, in State v. Sorrelhorse, this Court stated that "the term 'entry' in the criminal code requires only the slightest penetration of an interior space.". Similarly, in State v. Reynolds, the Court noted that "[a]ny penetration, however slight, of the interior space is sufficient [to constitute entry]." However, neither of these cases was using the term to address the question presented here. Rather, both Sorrelhorse and Reynolds were concerned with the extent to which the defendant penetrated the prohibited space.

The question here, in contrast, has to do with what defines the prohibited space. "[T]he established rule [is] that cases are not authority for propositions not considered[.]". Thus, we decline to ascribe undue significance to use of the word "interior" in those cases.

[Similarly, the dissent cites to out-of-state cases for the proposition that an "entry" requires a crossing of a structure's threshold.. Several of these are directly on point. For example, in State v. Pigques, the defendant "had entered into the space between [some] outer wooden doors and [an] inner wire-mesh door." The court thus considered "whether his entry into that space would constitute an entry into the building within the meaning of [Missouri's burglary statute]." Relying in part on the principle that entry requires a breach of the last barrier to the interior of the structure, the court held that the defendant had not completed a burglary but instead could be convicted only of attempted burglary. . In State v. McCall, on which Pigques relied, the Alabama Supreme Court considered whether there was an entry where the defendant "wrested open the window shutters, and his hands protruded beyond the line made by the shutters when shut, . . . notwithstanding the sash remained down and the glass was unbroken." The court concluded that [i]t cannot be, that the common security of the dwelling house is violated by breaking one of the shutters of a door or window which has several. True, it weakens the security which the mansion is supposed to afford, and renders the breach more easy; but as additional force will be necessary before an entry can be effected, there can, under such circumstances, be no burglary committed.

Thus, the court held that there was no burglary because "there was nothing but a breach of the blinds, and no entry beyond the sash window [and t]he threshold of the window had not been passed[.]" Id.

Interestingly, another case relied on by the dissent takes a different approach. In Miller v. State, the defendant had cut a hole in the roof of a store, climbed into the attic, and cut a hole in the ceiling, but had not entered the interior of the store itself. The defendant "contend[ed] that breaking of the roof and the subsequent breaking of the ceiling [wa]s not enough to constitute entry." Id. The court stated that it "would be inclined to agree with [the defendant] if it were not for the fact that there [wa]s evidence in the record that there was an airspace between the roof and the ceiling. . . . [I]t is reasonable to conclude that it would be necessary for the [defendant] to intrude himself, or some part of himself, into the hole that he had created in the roof in order to cut a hole in the ceiling on the other side of the airspace." Hence, in Miller, entry beyond the last barrier into the store (the ceiling) was not required to effect an entry. In other words, an entry into the space between the outer barrier and inner barrier was sufficient for a breaking and entering charge.

Faced with two competing analyses, we must choose the path most consonant with the purpose of our statute and Supreme Court precedent. We believe we have done so. Based on the test stated in Muqqddin and the reasoning of our sister states' courts, we conclude that a reasonable person would expect the window screen here to afford some protection from unauthorized intrusions. Consequently, we conclude that if any part of Defendant entered the space between the screen and the window, he "entered" the structure for purposes of the breaking and entering statute.

To the extent that Defendant argues that our holding will produce absurd results because "[t]his interpretation would convict of [b]reaking and [e]ntering any person who opens a screen door to knock on the door itself[,]" we disagree because under the "reasonable belief test" it would be unreasonable to believe that an unlocked screen door was a barrier "a member of the general public could not pass without authorization."

In Muqqddin, the Supreme Court cautioned lower courts against "expand[ing] . . . the reach of . . . statute[s] . . . without any parallel change in the statute.". Our conclusion does not do so. In Muqqddin, the gas tank and wheel well were not enclosed spaces in which "things are stored and personal items can be kept private." In contrast, a home is a structure the Legislature clearly intended to protect. Unlike the unenclosed parts of vehicles in Muqqddin, the screen here was no less a component of the home's enclosure than the walls, windows, or doors. Contrary to the dissent's assertion, our analysis does not depend on the perimeter or "close" concept that was rejected in Muqqddin. In rejecting that concept, the Muqqddin Court was specifically rejecting the idea of an "imaginary plane created by some portion of a structure that is by its nature open to the elements." Rather, our analysis is based on whether the window screen—a real, non-imaginary device—provided protection against intrusion and enclosed protected space. Because we conclude that it did, Defendant's placement of his hands behind the window screen was an intrusion into the structure's enclosure and infringed on Stamper's possessory rights. Such conduct is associated with the "feeling of violation and vulnerability" that the Legislature sought to prevent with the breaking and entering statute.

To convict Defendant, the jury had to find that (1) "the defendant entered [Stamper's residence] without permission; the least intrusion constitutes an entry;" and (2) "the entry was obtained by the dismantling of a window screen[.]" As we have discussed, because the window screen was part of the enclosure around the home, any intrusion into the space between the screen and window constitutes an "entry" for purposes of the breaking and entering statute. ("[T]he term 'entry' in the criminal code requires only the slightest penetration of an interior space."). Stamper testified that "[she] saw this man, and he had the screen halfway off the window, and he had his hand on each side of the screen, and he was twisting it and turning it and looking down. . . . He was trying to get the screen off." She described Defendant's fingers as being "over the screen." On redirect, she agreed with the State that Defendant's fingers "were then in that area between the window and the screen[.]" Viewed in the light most favorable to the verdict, this testimony is sufficient to permit the jury to conclude that Defendant had intruded into the protected space between the screen and window.

Dissent: Kennedy, J.

This Opinion unnecessarily expands the physical space into which "entry" must occur for breaking and entering exactly as we have recently been warned against pursuing by our Supreme Court. By defining "entry" through a solely judicial construction of the space to which it applies, the Opinion needlessly creates new definition for crimes that are already adequately defined. This Opinion for the first time establishes the outermost perimeter of a structure's space as what defines the scope of the word "entry" for breaking and entering and, presumably, for burglary as well. The Opinion, correctly, in my view, sees ambiguity in the central premise of "what delimits a structure." It recognizes that the Arizona legislature has explicitly defined "entry" as an "intrusion . . . inside the external boundaries of a structure or unit of real property" and that Texas's statute prohibits entry of a building "or any portion of a building.". California accomplished expanding an intrusion within the exterior plane of a building judicially, an accomplishment the Majority now seeks to duplicate. I read Muqqddin as a restriction on what the Majority seeks to accomplish in this case. Accordingly, I do not believe Muqqddin's citation to Valencia and Nible was intended to encourage our changing the use of the word "entry" by expanding the boundary of space to be entered in a way they took pains to criticize.. The Supreme Court undid our long-standing tendency to expand the spaces covered by breaking and entering and burglary; embarking again here on that path is unwise and unnecessary. With regard to Valencia and Nible, our Supreme Court specifically stated no more than that "a burglary can be committed through an open window[,]" that I see as protecting from a penetration of interior protected space, not the outermost plane of structure..

"The Legislature is free to define the prohibited space of burglary to include any part of almost anything. But absent a clearer intent to do so, we should not ourselves do that which the Legislature has declined to do. It is for the Legislature alone to define statutory criminal acts, and when it does not do so clearly, the rule of lenity compels judicial restraint.". In Muqqddin, as here, the acts in that case constituting the crime were "already punished under our statutes as other, lesser crimes." (holding that judicially expanding the legal definition of a crime to include behavior already punished as other, lesser crimes transgresses legislative intent). We recently took this conservative approach instructed by Muqqddin to heart, overruling the holding in State v. Tower to hold that entry into a commercial establishment in violation of a no trespass notice was not a predicate "entry" sufficient to fulfill the element of commercial burglary. We should be so restrained in this case.

The Supreme Court skeptically recognized that some states include parts of "almost anything" in burglary statutes involving vehicles, but chose to "disagree with the notion that any penetration of a vehicle's perimeter constitutes a penetration of the vehicle itself.". Valencia and Nible, relied upon by the Majority in this case, mirror our previous criticized cases when they "show [that] the requirement of entry is not difficult to satisfy; the slightest penetration will suffice.". Magness specifically operates under that boundary but, in Valencia, the defendant damaged the window behind the screen in his attempt to open it. The California Supreme Court in Magness made the "observation that no burglary would have occurred in Valencia . . . had the defendant removed the window screen but not penetrated into the area behind it[.]Wrapping fingers around the screen's frame alone may not be sufficient penetration under Magness. On the issue of what constitutes entry, Magness is construction of Valencia. "In sum, something that is outside must go inside for an entry to occur. I am not convinced that Valencia's and Nible's path is persuasive.

The expansion of the nature of structures that could be burgled resulted in our Court's having "gone astray" from the intent of both the common law and statutory roots of burglary according to our Supreme Court. We were thus criticized for creating a crime that enhanced "any crime committed in any type of structure or vehicle, as opposed to . . . punishment for a harmful entry.". We might do well to follow the Iowa Supreme Court, which restrained itself from enlarging the inclusion of curtilage, including front stoops and driveways into the definition of "occupied structure" because the legislature had not previously done so, stating: "We do not construe statutes so as to render a part of it superfluous, but presume our legislature included every part of the statute for a purpose and intended each part to be given effect.". Iowa sets a better example for us than California. The facts should fit the law. The law should not move to encompass the facts. From the progression through our vehicular burglary cases, I conclude that "entry" is not penetration of a perimeter to the slightest degree, and we should avoid expanding the protected area of a structure's interior in the absence of legislative direction.

Burglary traditionally entailed a home invasion, and the crime has evolved to "protect occupants against the terror and violence that can occur as a result of such an entry." The privacy interest protected by burglary statutes is related to the terror of having an intruder inside of one's home, into which the entry is fully accomplished. This Opinion recognizes this privacy interest and that Stamper's reaction to Defendant's actions is squarely within these senses of invasion, terror, and concern for possible personal violence that the burglary statute is designed to address. It is there the degree of "entry" falls short. Certainly, Defendant attempted an entry. But, the California Supreme Court stated, more specifically, "[t]he laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety." This case falls short of that standard. Breaking and entering differs from burglary because it protects a lesser interest than burglary, characterized by its inclusion in Article 14 of Chapter 30 of our statutes entitled "Trespass." Muqqddin counsels us to have a disinclination to expand a statute when others are adequate to the purpose at hand. (distinguishing burglary as protecting rights that exist beyond "other laws" intended to deter trespass and theft). Attempt is the taking an act in furtherance of an intention to commit a crime. Defendant did not complete the act of entry and, given his likely intent and location of his crime, it is attempted burglary, not breaking and entering, that accounts for what the Majority says protects a heightened interest against "invasion of privacy" and security to justify their new boundary. If the Majority follows the conservative approach given us by Muqqddin, then Defendant here should be criminally responsible for attempted residential burglary or, perhaps, attempted breaking and entering, criminal trespass, and criminal damage. The distinction is notable, and the existing criminal statutes are fully adequate as written.

Because Defendant did not enter Stamper's house, he is, depending on what might be proven of his intent, guilty of no more than an attempt to commit either breaking and entering or burglary, along with the other crimes he most certainly committed, involving trespass or vandalism.

Many other states have not expanded boundaries outward. Iowa and Hawaii, mentioned above, declined to undertake a judicial expansion of their statute. Most states seem to depend on crossing a "threshold" to find entry. ). Many states have determined that passing the "line of the threshold" with all or part of the body into the interior perimeter of the structure is entry by the defendant.. Intrusion into the building is required in New Jersey, Missouri, Florida, Louisiana, Illinois, Alabama, and North Carolina.

Stamper's house for purposes of breaking and entering. I believe that his conduct is adequately covered by other statutes and that the cause of justice would not suffer if he were convicted of the proper crime(s). Breaking and entering and attempted residential burglary are fourth-degree felonies; the legislated punishment is the same for both. Attempted breaking and entering together with criminal trespass and criminal damage to the screen would be an adequate combination to accurately punish him. When facts fit snugly within existing statutes, bending another statute to fit stretches the law's reach past its legislative intent.

I would prefer that this Court decline to expand the extent of protected spaces. The Majority concludes early on that the language of the statute does little to help us divine legislative intent regarding whether the space between the screen and window is prohibited space. . The Opinion recognizes that our statute does not state that entry into "any part of a structure will suffice." There is no "plain meaning" in our statute to define the space protected from "entry" and that ambiguity requires our exercising the rule of lenity to Defendant's benefit in this case. Our previous attempts to expand the reach of protected space have been criticized. Granted, California and Massachusetts in Valencia and Burke have held in accord with where this Opinion takes us. Kindred is based upon the Arizona statute already distinguished from ours, but bases the crime on intruding into a boundary, as opposed to a structure, which I would regard as just the position we took in Rodriguez that was rejected by our Supreme Court in Muqqddin. Other out of state cases cited by the Majority are not so illuminating. I would prefer, in light of Muqqddin, to wait for it to come from somewhere else.

You Decide 9.6: Did Nicholas Y. vandalize property when he wrote with a marker on the glass of a projection booth? People v. Nicholas Y., 102 Cal. Rptr. 2d 511 (Cal. Ct. App. 2000). Opinion by: Epstein, J.

Appellant Nicholas Y. appeals from orders of the juvenile court finding that he vandalized property belonging to the AMC theater, declaring him a ward of the court pursuant to Welfare and Institutions Code section 602, and placing him home on probation. He contends the evidence was insufficient to prove he violated Penal Code section 594 (vandalism). . . .

The evidence . . . proved that in the early morning hours of February 11, 2000, Nicholas Y. wrote on a glass window of a projection booth at an AMC theater with a Sharpie marker. After his arrest, appellant admitted to police that he had written “RTK” on the window. Police saw “approximately 30 incidents” in red magic marker throughout the theater, including the one on the glass. Appellant said the initials stood for “The Right to Crime.”

At the close of the prosecution’s case, appellant’s counsel argued that no defacing of or damage to property had been proved, stating: “It’s a piece of glass with a marker on it. You take a rag and wipe it off. End of case. It’s ridiculous.” The prosecutor countered that appellant trespassed and left fresh marks on the window, thus defacing the window with graffiti. The court found that appellant violated Penal Code section 594, subdivision (a), a misdemeanor.

Penal Code section 594 provides, in relevant part:

(a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own . . . is guilty of vandalism:

(1) Defaces with graffiti or other inscribed material.

(2) Damages.

(3) Destroys. . . . 

(4) (A) If the amount of defacement, damage, or destruction is less than four hundred dollars ($400), vandalism is punishable by imprisonment in a county jail for not more than six months, or by a fine of not more than one thousand dollars ($1,000) or by both that fine and imprisonment. . . . 

(e) As used in this section the term “graffiti or other inscribed material” includes any unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on real or personal property.

Appellant contends he did not violate the statute because the word “deface” contemplates a “permanent alteration” of the surface of an object rather than the easily removed marking he placed on the window. He compares the facts of this case to chalk writing on a sidewalk held not to constitute vandalism in violation of Penal Code section 594 in MacKinney v. Nielsen, 69 F.3d 1002 (9th Cir. 1995). As appellant acknowledges, however, the statutory language interpreted in that case was different, making it “illegal to (1) deface ‘with paint or any other liquid,’ (2) damage or (3) destroy any real or personal property that is not one’s own.” The Ninth Circuit Court of Appeals reasoned that chalk is not a liquid and did not damage the sidewalk. Therefore, it found the defendant did not violate the statute. The Legislature subsequently amended the statute to delete the phrase “defaces with paint or any other liquid” and substitute in its place the phrase “defaces with graffiti or other inscribed material.” Accordingly, the MacKinney case is of no assistance to appellant’s cause. . . . Certainly the case does not support appellant’s contention that there is no defacement unless the act makes a material alteration or permanent change to the surface of the defaced object.

Graffiti may be, and regularly is, created with marker pens. It would be irrational to hold that use of a marker pen on, for example, a painted or stucco surface constitutes vandalism in violation of Penal Code section 594, subdivision (a)(1) while use of a marker pen on glass is not. Each mars the surface with graffiti which must be removed in order to restore the original condition. This pragmatic fact is consistent with the primary meaning of the word “deface” as defined in the Oxford English Dictionary: “To mar the face, features, or appearance of; to spoil or ruin the figure, form, or beauty of; to disfigure.” This definition does not incorporate an element of permanence. Thus, it appears that a marring of the surface is no less a defacement because it is more easily removed.

CHAPTER TEN

You Decide 10.1: UNITED STATES V. WALTERS. 997 F.2d 1219 (7th Cir. 1993). Opinion By: Easterbrook, J.

Issue

The question in this case is whether Norby Walters was properly convicted of mail fraud. the relevant federal statute provides that “Whoever, having devised . . . any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . . places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service . . . or knowingly causes [such matter or thing] to be delivered by mail" commits the crime of mail fraud. 18 U.S.C. § 1341.

Facts

Norby Walters, who represents entertainers, tried to move into the sports business. He signed 58 college football players to contracts while they were still playing. Walters offered cars and money to those who would agree to use him as their representative in dealing with professional teams. Sports agents receive a percentage of the players' income, so Walters would profit only to the extent he could negotiate contracts for his clients. The athletes' pro prospects depended on successful completion of their collegiate careers. To the NCAA, however, a student who signs a contract with an agent is a professional, ineligible to play on collegiate teams. To avoid jeopardizing his clients' careers, Walters dated the contracts after the end of their eligibility and locked them in a safe. He promised to lie to the universities in response to any inquiries. Walters inquired of sports lawyers at Shea & Gould whether this plan of operation would be lawful. The firm rendered an opinion that it would violate the NCAA's rules but not any statute.

Having recruited players willing to fool their universities and the NCAA, Walters discovered that they were equally willing to play false with him. Only 2 of the 58 players fulfilled their end of the bargain; the other 56 kept the cars and money, then signed with other agents. They relied on the fact that the contracts were locked away and dated in the future, and that Walters' business depended on continued secrecy, so he could not very well sue to enforce their promises. When the 56 would neither accept him as their representative nor return the payments, Walters resorted to threats. One player, Maurice Douglass, was told that his legs would be broken before the pro draft unless he repaid Walters' firm. A 75-page indictment charged Walters and his partner Lloyd Bloom with conspiracy, RICO violations (the predicate felony was extortion), and mail fraud. The fraud: causing the universities to pay scholarship funds to athletes who had become ineligible as a result of the agency contracts. The mail: each university required its athletes to verify their eligibility to play, then sent copies by mail to conferences such as the Big Ten.

After a month-long trial and a week of deliberations, the jury convicted Walters and Bloom. We reversed, holding that the district judge had erred ..[o]n remand, Walters asked the district court to dismiss the indictment, arguing that the evidence presented at trial is insufficient to support the convictions. After the judge denied this motion …, Walters agreed to …plead guilty to mail fraud, conceding that the record of the first trial supplies a factual basis for a conviction while reserving his right to contest the sufficiency of that evidence. In return, the prosecutor agreed to dismiss the RICO and conspiracy charges and to return to Walters all property that had been forfeited as a result of his RICO conviction. Thus a case that began with a focus on extortion has become a straight mail fraud prosecution and may undergo yet another transformation…. The plea agreement reserves the prosecutor's right to charge Walters with perjury and obstruction of justice if we should reverse the conviction for mail fraud.

Reasoning

Norby Walters did not mail anything or cause anyone else to do so (the universities were going to collect and mail the forms no matter what Walters did), but the Supreme Court has expanded the statute beyond its literal terms, holding that a mailing by a third party suffices if it is "incident to an essential part of the scheme," While stating that such mailings can turn ordinary fraud into mail fraud, the Court has cautioned that the statute "does not purport to reach all frauds, but only those limited instances in which the use of the mails is a part of the execution of the fraud". Everything thus turns on matters of degree. Did the schemers foresee that the mails would be used? Did the mailing advance the success of the scheme? Which parts of a scheme are "essential"? Such questions lack obviously right answers, so it is no surprise that each side to this case can cite several of our decisions in support.

"The relevant question . . . is whether the mailing is part of the execution of the scheme as conceived by the perpetrator at the time," Did the evidence establish that Walters conceived a scheme in which mailings played a role? We think not--indeed, that no reasonable juror could give an affirmative answer to this question. Walters hatched a scheme to make money by taking a percentage of athletes' pro contracts. To get clients he signed students while college eligibility remained, thus avoiding competition from ethical agents. To obtain big pro contracts for these clients he needed to keep the deals secret, so the athletes could finish their collegiate careers. Thus deceit was an ingredient of the plan. We may assume that Walters knew that the universities would ask athletes to verify that they were eligible to compete as amateurs. But what role do the mails play? The plan succeeds so long as the athletes conceal their contracts from their schools (and remain loyal to Walters). Forms verifying eligibility do not help the plan succeed; instead they create a risk that it will be discovered if a student should tell the truth. And it is the forms, not their mailing to the Big Ten that pose the risk. For all Walters cared, the forms could sit forever in cartons. Movement to someplace else was irrelevant. In Schmuck, where the fraud was selling cars with rolled-back odometers, the mailing was essential to obtain a new and apparently "clean" certificate of title; no certificates of title, no marketable cars, no hope for success. Even so, the Court divided five to four on the question whether the mailing was sufficiently integral to the scheme. A college's mailing to its conference has less to do with the plot's success than the mailings that transferred title in Schmuck. United States v. Schmuck, 489 U.S. 708 (1989).

To this the United States responds that the mailings were essential because, if a college had neglected to send the athletes' forms to the conference, the NCAA would have barred that college's team from competing. Lack of competition would spoil the athletes' pro prospects. Thus the use of the mails was integral to the profits Walters hoped to reap, even though Walters would have been delighted had the colleges neither asked any questions of the athletes nor put the answers in the mail….The question remains whether Walters caused the universities to use the mails. A person "knowingly causes" the use of the mails when he "acts with the knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen." The paradigm is insurance fraud. Perkins tells his auto insurer that his car has been stolen, when in fact it has been sold. The local employee mails the claim to the home office, which mails a check to Perkins. Such mailings in the ordinary course of business are foreseeable. …The prosecutor contends that the same approach covers Walters.

No evidence demonstrates that Walters actually knew that the colleges would mail the athletes' forms. The record is barely sufficient to establish that Walters knew of the forms' existence; it is silent about Walters' knowledge of the forms' disposition. The only evidence implying that Walters knew that the colleges had students fill out forms is an ambiguous reference to "these forms" in the testimony of Robert Perryman. Nothing in the record suggests that Perryman, a student athlete, knew what his university did with the forms, let alone that Perryman passed this information to Walters. So the prosecutor is reduced to the argument that mailings could "reasonably be foreseen." Yet why should this be so? Universities frequently collect information that is stashed in file drawers. Perhaps the NCAA just wants answers available for inspection in the event a question arises, or the university wants the information for its own purposes (to show that it did not know about any improprieties that later come to light). What was it about these forms that should have led a reasonable person to foresee their mailing? Recall that Walters was trying to break into the sports business. Counsel specializing in sports law told him that his plan would not violate any statute. These lawyers were unaware of the forms (or, if they knew about the forms, were unaware that they would be mailed). The prosecutor contends that Walters neglected to tell his lawyers about the eligibility forms, spoiling their opinion; yet why would Walters have to brief an expert in sports law if mailings were foreseeable even to a novice?

In the end, the prosecutor insists that the large size and interstate nature of the NCAA demonstrate that something would be dropped into the mails. To put this only slightly differently, the prosecutor submits that all frauds involving big organizations necessarily are mail frauds, because big organizations habitually mail things. No evidence put before the jury supports such a claim….Moreover, adopting this perspective would contradict the assurance of …many… cases that most frauds are covered by state law rather than § 1341. That statute has been expanded considerably by judicial interpretation, but it does not make a federal crime of every deceit. The prosecutor must prove that the use of the mails was foreseeable, rather than calling on judicial intuition to repair a rickety case…..

You Decide 10.2: UNITED STATES V. LORI DREW. 259 F.R.D. 449 (D.Cal. 2009). Opinion By: Wu, J.

Issue

This case raises the issue of whether (and/or when will) violations of an Internet website's terms of service constitute a crime under the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030. …[T]he question in the present motion …is whether an intentional breach of an Internet website's terms of service, without more, is sufficient to constitute a misdemeanor violation of the CFAA.

Facts

The Indictment included the following allegations (not all of which were established by the evidence at trial). Drew, a resident of O'Fallon, Missouri, entered into a conspiracy in which its members  agreed to intentionally access a computer used in interstate commerce without (and/or in excess of) authorization in order to obtain information for the purpose of committing the tortious act of intentional infliction of emotional distress upon "M.T.M.," subsequently identified as Megan Meier ("Megan"). Megan was a 13 year old girl living in O'Fallon who had been a classmate of Drew's daughter Sarah. Pursuant to the conspiracy, on or about September 20, 2006, the conspirators registered and set up a profile for a fictitious 16 year old male juvenile named "Josh Evans" on the MySpace website, and posted a photograph of a boy without that boy's knowledge or consent. Such conduct violated MySpace's terms of service. The conspirators contacted Megan through the MySpace network (on which she had her own profile) using the Josh Evans pseudonym and began to flirt with her over a number of days. On or about October 7, 2006, the conspirators had "Josh" inform Megan that he was moving away. On or about October 16, 2006, the conspirators had "Josh" tell Megan that he no longer liked her and that "the world would be a better place without her in it." Later on that same day, after learning that Megan had killed herself, Drew caused the Josh Evans MySpace account to be deleted.

The jury found the Defendant "guilty" "of accessing a computer involved in interstate or foreign communication without authorization or in excess of authorization to obtain information in violation of Title 18, United States Code, Section 1030(a)(2)(C) and (c)(2)(A), a misdemeanor."

Reasoning

As Jae Sung (Vice President of Customer Care at MySpace) ("Sung") testified at trial, MySpace is a "social networking" website where members can create "profiles" and interact with other members. Anyone with Internet access can go onto the MySpace website and view content which is open to the general public such as a music area, video section, and members' profiles which are not set as "private." However, to create a profile, upload and display photographs, communicate with persons on the site, write "blogs," and/or utilize other services or applications on the MySpace website, one must be a "member." Anyone can become a member of MySpace at no charge so long as they meet a minimum age requirement and register.

In 2006, to become a member, one had to go to the sign-up section of the MySpace website and register by filling in personal information (such as name, email address, date of birth, country/state/postal code, and gender) and creating a password. In addition, the individual had to check on the box indicating that "You agree to the MySpace Terms of Service and Privacy Policy." The terms of service did not appear on the same registration page that contained this "check box" for users to confirm their agreement to those provisions. In order to find the terms of service, one had (or would have had) to proceed to the bottom of the page where there were several "hyperlinks" including one entitled "Terms." Upon clicking the "Terms" hyperlink, the screen would display the terms of service section of the website. A person could become a MySpace member without ever reading or otherwise becoming aware of the provisions and conditions of the MySpace terms of service by merely clicking on the "check box" and then the "Sign Up" button without first accessing the "Terms" section.

As used in its website, "terms of service" refers to the " Terms of Use Agreement" ("MSTOS"). The MSTOS in 2006 stated, inter alia:

This Terms of Use Agreement ("Agreement") sets forth the legally binding terms for your use of the Services. By using the Services, you agree to be bound by this Agreement…By using the Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of the Services does not violate any applicable law or regulation.

The MSTOS prohibited the posting of a wide range of content on the website including (but not limited to) material that: a) "is potentially offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual"; b) "harasses or advocates harassment of another person"; c) "solicits personal information from anyone under 18"; d) "provides information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous"; e) "includes a photograph of another person that you have posted without that person's consent"; f) "involves commercial activities and/or sales without our prior written consent"; g) "contains restricted or password only access pages or hidden pages or images"; or h) "provides any phone numbers, street addresses, last names, URLs or email addresses . . . ." MySpace also reserved the right to take appropriate legal action (including reporting the violating conduct to law enforcement authorities) against persons who engaged in "prohibited activity" which was defined as including, inter alia: a) "criminal or tortious activity", b) "attempting to impersonate another Member or person", c) "using any information obtained from the Services in order to harass, abuse, or harm another person", d) "using the Service in a manner inconsistent with any and all applicable laws and regulations", e) "advertising to, or solicitation of, any Member to buy or sell any products or services through the Services", f) "selling or otherwise transferring your profile", or g) "covering or obscuring the banner advertisements on your personal profile page . . . ." The MSTOS warned users that "information provided by other Members (for instance, in their Profile) may contain inaccurate, inappropriate, offensive or sexually explicit material, products or services, and assumes no responsibility or liability for this material." Further, MySpace was allowed to unilaterally modify the terms of service, with such modifications taking effect upon the posting of notice on its website. Thus, members would have to review the MSTOS each time they logged on to the website, to ensure that they were aware of any updates in order to avoid violating some new provision of the terms of service. Also, the MSTOS provided that "any dispute" between a visitor/member and MySpace "arising out of this Agreement must be settled by arbitration" if demanded by either party.

At one point, MySpace was receiving an estimated 230,000 new accounts per day and eventually the number of profiles exceeded 400 million with over 100 million unique visitors worldwide. "Generally speaking," MySpace would not monitor new accounts to determine if they complied with the terms of service except on a limited basis, mostly in regards to photographic content. . Sung testified that there is no way to determine how many of the 400 million existing MySpace accounts were created in a way that violated the MSTOS. The MySpace website did have hyperlinks labelled "Safety Tips" (which contained advice regarding personal, private and financial security vis-a-vis the site) and "Report Abuse" (which allowed users to notify MySpace as to inappropriate content and/or behavior on the site). MySpace attempts to maintain adherence to its terms of service. It has different teams working in various areas such as "parent care" (responding to parents' questions about this site), handling "harassment/cyberbully cases, imposter profiles," removing inappropriate content, searching or underage users, etc. As to MySpace's response to reports of harassment:

It varies depending on the situation and what's being reported. It can range from . . . letting the user know that if they feel threatened to contact law enforcement, to us removing the profile, and in rare circumstances we would actually contact law enforcement ourselves.

Profiles created by adult MySpace members are by default available to any user who accesses the MySpace website. The adult members can, however, place privacy settings on their accounts such that only pre-authorized "friends" are able to view the members' profile pages and contents. For members over 16 but under 18, their profiles are by default set at "private" but can be changed by the member. Members under 16 have a privacy setting for their profiles which cannot be altered to allow regular public access. To communicate with a member whose profile has a privacy setting, one must initially send a "friend" request to that person who would have to accept the request. To become a "friend" of a person under 16, one must not only send a "friend" request but must also know his or her email address or last name.

In 2006, the CFAA (18 U.S.C. § 1030) provided in relevant part that:

(a) Whoever --

…

(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains --

(A) information contained in a financial record of a financial institution, or of a card issuer as defined in section 1602(n) of title 15, or contained in a file of a consumer reporting agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);

(B) information from any department or agency of the United States; or

(C) information from any protected computer if the conduct involved an interstate or foreign communication;

…

shall be punished as provided in subsection (c) of this section.

…

(c) The punishment for an offense under subsection (a) or (b) of this section is --

…

(2)(A) except as provided in subparagraph (B), a fine under this title or imprisonment for not more than one year, or both, in the case of an offense under subsection (a)(2), (a)(3), (a)(5)(A)(iii), or (a)(6) of this section which does not occur after a conviction for another offense under this section, or an attempt to commit an offense punishable under this subparagraph;

. . .

(B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under subsection (a)(2), or an attempt to commit an offense punishable under this subparagraph, if --

(i) the offense was committed for purposes of commercial advantage or private financial gain;

(ii) the offense was committed in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State; or

(iii) the value of the information obtained exceeds $ 5,000 . . . .

As used in the CFAA, the term "computer" "includes any data storage facility or communication facility directly related to or operating in conjunction with such device . . . ." 18 U.S.C. § 1030(e)(1). The term "protected computer" "means a computer - (A) exclusively for the use of a financial institution or the United States Government . . . ; or (B) which is used in interstate or foreign commerce or communication . . . ." Id. § 1030(e)(2). The term "exceeds authorized access" means "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter . . . ." Id. § 1030(e)(6).

During the relevant time period herein, the misdemeanor 18 U.S.C. § 1030(a)(2)(C) crime consisted of the following three elements:

First, the defendant intentionally [accessed without authorization] [exceeded authorized access of] a computer;

Second, the defendant's access of the computer involved an interstate or foreign communication; and

Third, by [accessing without authorization] [exceeding authorized access to] a computer, the defendant obtained information from a computer . . . [used in interstate or foreign commerce or communication] . . . .

In this case, a central question is whether a computer user's intentional violation of one or more provisions in an Internet website's terms of services (where those terms condition access to and/or use of the website's services upon agreement to and compliance with the terms) satisfies the first element of section 1030(a)(2)(C). If the answer to that question is "yes," then seemingly, any and every conscious violation of that website's terms of service would violate federal law.

Treating a violation of a website's terms of service, without more, to be sufficient to constitute "intentionally access[ing] a computer without authorization or exceed[ing] authorized access" would result in transforming section 1030(a)(2)(C) into an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals. ….One need only look to the MSTOS terms of service to see the expansive and elaborate scope of such provisions whose breach engenders the potential for criminal prosecution. Obvious examples of such breadth would include: 1) the lonely-heart who submits intentionally inaccurate data about his or her age, height and/or physical appearance, which contravenes the MSTOS prohibition against providing "information that you know is false or misleading"; 2) the student who posts candid photographs of classmates without their permission, which breaches the MSTOS provision covering "a photograph of another person that you have posted without that person's consent"; and/or 3) the exasperated parent who sends out a group message to neighborhood friends entreating them to purchase his or her daughter's girl scout cookies, which transgresses the MSTOS rule against "advertising to, or solicitation of, any Member to buy or sell any products or services through the Services." However, one need not consider hypotheticals to demonstrate the problem. In this case, Megan (who was then 13 years old) had her own profile on MySpace, which was in clear violation of the MSTOS which requires that users be "14 years of age or older." No one would seriously suggest that Megan's conduct was criminal or should be subject to criminal prosecution.

Holding

In sum, if any conscious breach of a website's terms of service is held to be sufficient by itself to constitute intentionally accessing a computer without authorization or in excess of authorization, the result will be that section 1030(a)(2)(C) becomes a law "that affords too much discretion to the police and too little notice to citizens who wish to use the [Internet]."

You Decide 10.3: United States v. Gupta, Sentencing Memorandum by Judge Jed S. Rakoff (S.D.N.Y. 2012)

The Court is called upon to impose sentence on Rajat K. Gupta, who on June 15, 2012, was found guilty by a jury of one count of conspiracy and three counts of substantive securities fraud, in connection with providing material non-public information to Raj Rajaratnam. . . . Imposing a sentence on a fellow human being is a formidable responsibility. It requires a court to consider, with great care and sensitivity, a large complex of facts, and factors. The notion that this complicated analysis, and moral responsibility, can be reduced to the mechanical adding-up of a small set of numbers artificially assigned to a few arbitrarily-selected variables wars with common sense. Whereas apples and oranges may have but a few salient qualities, human beings in their interactions with society are too complicated to be treated-like commodities, and the attempt to do so can only lead to bizarre results. . . .

In the eye of the law, Gupta’s crime was to breach his fiduciary duty of confidentiality as a board member of the investment bank Goldman Sachs; or to put it another way, Goldman Sachs, not the marketplace, was the victim of Gupta’s crimes as charged. . . . [I]t is . . . clear to the Court, both from the jury’s split verdict and from the Court’s own assessment of the evidence, that the trades in question were those made by Rajaratnam and his Galleon funds on September 23, 2008 and October 24, 2008, directly and immediately as the result of tips from Gupta. In the former case, Gupta, late on the afternoon of September 23, tipped Rajaratnam about Warren Buffett’s soon-to-be-announced infusion of $5 billion into Goldman Sachs, whereupon Rajaratnam caused various Galleon funds to purchase large quantities of Goldman stock just before the market closed. When the Buffett investment was announced the following morning, the stock surged, causing Galleon to realize an immediate gain of $1,231,630. In the latter case, Gupta, on October 23, tipped Rajaratnam that Goldman Sachs would soon report third quarter losses, whereas many analysts were predicting a profit. On the next day, Rajaratnam sold 150,000 shares of Goldman. Thereafter, as word began to seep out about Goldman’s reduced prospects, the stock began to fall, and when the poor third quarter results were finally made public on December 16, 2008, it fell still further. Based on all the evidence, the Court concludes that, it is more likely than not that Rajaratnam, in the absence of Gupta’s tip, would not have caused Galleon to sell its valuable Goldman stock until the morning of December 17, 2008. The tip thus enabled Galleon to avoid losses of $3,800,565. Taken together, therefore, the September and October tip-based trades resulted in an illegal “gain” of $5,032,195.

The Court . . . turns to the bedrock of all federal sentencing, section 3553(a) of Title 18, entitled “Factors to be considered in imposing a sentence.” The very first factor is “the nature and circumstances of the offense and the history and characteristics of the defendant.” Thus, at the very outset, there is presented the fundamental problem of this sentence, for Mr. Gupta’s personal history and characteristics starkly contrast with the nature and circumstances of his crimes.

All the evidence before the Court—not just the letters written on Mr. Gupta’s behalf but also the objective facts of record—establish beyond cavil that Mr. Gupta has selflessly devoted a huge amount of time and effort to a very wide variety of socially beneficial activities, such as the Global Fund to Fight AIDS, Tuberculosis and Malaria, the Public Health Foundation of India, the Indian School of Business, the Pratham Foundation (which provides quality education to underprivileged children in India), the Cornell Medical School, the Rockefeller Foundation, and many, many more. As well summarized in his counsel’s sentencing memorandum, such activities are but illustrations of Mr. Gupta’s big heart and helping hand, which he extended without fanfare or self-promotion, to all with whom he came in contact.

While some have suggested that the large volume of poignant letters submitted on Mr. Gupta’s behalf are simply the stratagem of a rich, well-connected defendant endeavoring to derail the Court from focusing on his crimes, this is simply not the case, for the facts recited in most of the letters are well documented and, indeed, undisputed by the Government. The Court can say without exaggeration that it has never encountered a defendant whose prior history suggests such an extraordinary devotion, not only to humanity writ large, but also to individual human beings in their times of need. . . . [O]n this day of judgment, must not one judge the man as a whole?

But when one looks at the nature and circumstances of the offense, the picture darkens considerably. In the Court’s view, the evidence at trial established, to a virtual certainty, that Mr. Gupta, well knowing his fiduciary responsibilities to Goldman Sachs, brazenly disclosed material non-public information to Mr. Rajaratnam at the very time, September and October 2008, when our financial institutions were in immense distress and most in need of stability, repose, and trust. Consider, for example, his tip to Rajaratnam on September 23, 2008. With Goldman Sachs in turmoil but on the verge of being rescued from possible ruin by an infusion of $5 billion, Gupta, within minutes of hearing of the transaction, tipped Rajaratnam, so that the latter could trade on this information in the last few minutes before the market closed. This was the functional equivalent of stabbing Goldman in the back.

So why did Mr. Gupta do it? Since motive is not an element of the offenses here in issue, it did not need to be proved at trial, and so one can only speculate. Having finished his spectacular career at McKinsey in 2007, Gupta, for all his charitable endeavors, may have felt frustrated in not finding new business worlds to conquer; and Rajaratnam, a clever cultivator of persons with information, repeatedly held out prospects of exciting new international business opportunities that Rajaratnam would help fund but that Gupta would lead. There is also in some of the information presented to the Court under seal an implicit suggestion that, after so many years of assuming the role of father to all, Gupta may have longed to escape the straight jacket of overwhelming responsibility, and had begun to loosen his self-restraint in ways that clouded his judgment. But whatever was operating in the recesses of his brain, there is no doubt that Gupta, though not immediately profiting from tipping Rajaratnam, viewed it as an avenue to future benefits, opportunities, and even excitement. Thus, by any measure, Gupta’s criminal acts represented the very antithesis of the values he had previously embodied.

So how does a court balance these polar extremes? In arguing for a non-guideline sentence in the Pre-Sentence Report, the experienced Senior U.S. Probation Officer Emily Frankelis had this to say: “We believe the defendant’s commission of the instant offenses was aberrant behavior . . . as defined by Merriam-Webster:  . . . atypical.” . . . [I]n order to find just the right sentence, the Court must also consider two further mandates of section 3553(a): first, “the need for the sentence imposed” to afford specific deterrence, general deterrence, “just punishment,” and the like; and, second, the requirement that any sentence imposed be “sufficient, but not greater than necessary, to comply with [these] purposes.”

As to specific deterrence, it seems obvious that, having suffered such a blow to his reputation, Mr. Gupta is unlikely to repeat his transgressions, and no further punishment is needed to achieve this result. General deterrence, however, suggests a different conclusion. As this Court has repeatedly noted in other cases, insider trading is an easy crime to commit but a difficult crime to catch. Others similarly situated to the defendant must therefore be made to understand that when you get caught, you will go to jail. Defendant’s proposals to have Mr. Gupta undertake various innovative forms of community service would, in the Court’s view, totally fail to send this message. Moreover, if the reports of Mr. Gupta’s charitable endeavors are at all accurate, he can be counted on to devote himself to community service when he finishes any prison term, regardless of any order of the Court.

At the same time, no one really knows how much jail time is necessary to materially deter insider trading; but common sense suggests that most business executives fear even a modest prison term to a degree that more hardened types might not. Thus, a relatively modest prison term should be “sufficient, but not more than necessary,” for this purpose.

There are, however, still other factors set forth in section 3553(a) that the Court must, and has, considered, of which perhaps the most difficult, but most important one, is the concept of “just punishment.” While all the other factors under section 3553(a) partake to a lesser or greater degree of policy considerations, “just punishment” taps a deeper vein. Human beings, as social animals, are programmed to respect moral values. This is why people without shame or guilt are considered psychopaths, and also why violations of the moral order raise such deep passions in the human breast. As people have come to understand that insider trading is not only a sophisticated form of cheating but also a fundamental breach of trust and confidence, they have increasingly internalized their revulsion for its commission. While no defendant should be made a martyr to public passion, meaningful punishment is still necessary to reaffirm society’s deep-seated need to see justice triumphant. No sentence of probation, or anything close to it, could serve this purpose.

After carefully weighing all these, and other, relevant factors, the Court concludes that the sentence that most fulfills all requirements of section 3553(a) is two years in prison. Rajat K. Gupta is therefore sentenced to 24 months’ imprisonment, concurrent on all counts, to be followed by one year of supervised release, on the terms stated from the bench and here incorporated by reference. The otherwise mandatory forfeiture has been waived by the Government, but the Court imposes a fine in the sum of $5,000,000. The Court will defer the determination of restitution for up to 90 days, as permitted by federal law. . . .

CHAPTER ELEVEN

You Decide 11.1: IN RE CESAR. 192 Cal.App.4th 989 (Cal. Ct.App. 2011). Opinion By: Mihara, J.

Issue

Appellants Cesar V. and Antonio V. challenge the juvenile court's findings that they violated Penal Code section 415, subdivision (1) by making a challenge to fight in a public place.

Facts

The only witnesses at the contested jurisdictional hearing were Santa Cruz Police Sergeant Loran Baker and the prosecution's gang expert.

Baker testified that on November 19, 2009, at 12:30 p.m., he was driving east on Laurel Street just past Center Street near downtown Santa Cruz. He was in plain clothes and driving an unmarked car. The traffic was “stop-and-go,” so he was proceeding at just “a few miles per hour.” Baker saw 16-year-old Cesar and 17-year-old Antonio walking westbound along the sidewalk on the other side of Laurel Street. Cesar and Antonio had “their attention directed towards the traffic and [were] making some hand signs.” Baker was particularly attentive to this activity because a 16-year-old boy had  been stabbed to death “where the same kind of exchange was occurring” just a month earlier, a block away from this location.

Baker “couldn't tell if” the hand signs being made by Cesar and Antonio were directed at “a car or somebody on the [other side of the] street,” but he saw that “their gestures … seemed to be getting more aggressive and [they were] moving towards them like they were challenging them to fight, I realized then, hey, this is for real, and they are challenging somebody.” Since their behavior was “aggressive,” Baker could tell that they were not “fooling around.” Cesar and Antonio “changed directions” and “were moving towards the street.” Cesar and Antonio put their hands up in the air while taking “a few steps towards the cars like, hey, let's go,” a gesture that Baker “took that as a challenge, let's go.” They “held their arms up in an inviting manner” which was “like, hey, it's on, you're open to somebody approaching you.”

Because Cesar and Antonio had moved to the edge of the sidewalk, and Baker was concerned that violence would ensue, he “did a U-turn in traffic,” drove up behind Cesar and Antonio, activated his lights, called for backup, and told Cesar and Antonio to “wait right there.” When a uniformed officer arrived to assist Baker less than two minutes later, Baker and the other officer separated Cesar and Antonio and spoke with them individually.

Antonio told Baker that he had “been using hand signals to display a gang slogan … towards a car.”… ” He told Baker that “one of the occupants in the rear seat [of the Cadillac] had actually thrown him a four, meaning Norteno sign” which would identify that person as a Norteno gang member. Antonio told Baker that he had made signs for P, S, and C to signify the Poor Side Chicos gang, a Watsonville Sureno gang. Poor Side Chicos consists of the “younger members” of the Poor Side Gang. Poor Chicos like other Sureno gangs associate with the color blue and the number 13. Poor Side gang members “hate” Nortenos.

Antonio asserted that he “took it [the occupant's alleged sign] as being a challenge, a form of disrespect.” He said he was “not really afraid because … there was a girl in the car.” Antonio told Baker that he thought a fight was unlikely to occur because “typically there won't be a gang fight when the girl was present.” Antonio also said that any fight would have been “fair” because there were two people in the Cadillac. Antonio denied being a gang member, but he admitted that he associated with Poor Side Chicos gang members. He said that he “had to … kind of like stand up for his friends.” Antonio acknowledged that he was aware that his conduct had occurred in an area “where Nortenos and Surenos would actually cross paths and it would be not good.” Antonio also admitted that the blue “swoosh” on the Nike shoes he was wearing was intended to “signify” his Sureno affiliation.

Baker then spoke to Cesar. Like Antonio, Cesar admitted making a “hand gesture” of “a  P an S and a C for Poor Side Chicos” and claimed that an occupant of a white Cadillac had made a gesture. Cesar maintained that he “was just holding his ground and not trying to challenge the occupants” of the Cadillac. Cesar said he was not a gang member but admitted he associated with members of the Poor Side Chicos gang.

Cesar and Antonio had been stopped previously by police in the company of a Poor Side Chicos gang member. On another occasion, they were stopped by police with Sureno gang members, and Antonio was wearing attire associated with the Poor Side Chicos gang….

The prosecution's gang expert testified that a gesture of putting one's hands up in the air would be seen as “challenging the other person.” He also opined that the “common response” to someone making a gang sign is violence. The expert testified that there was “no other reason” for a person to make a gang sign besides “challenging them to fight.” The presence of a girl would not eliminate the risk of violence in such a situation. The gang expert testified that the Poor Side Chicos gang would benefit from a challenge such as that made by Cesar and Antonio because “[i]t would further the violent reputation” of the gang “within the community.”

The prosecutor argued that a gang sign “thrown at someone that is perceived as a rival, is an invitation to a fight, a challenge to a fight.” …Antonio's trial counsel joined in Cesar's counsel's arguments and argued that Antonio “didn't think a fight was going to happen, so clearly in his mind he is not challenging someone to fight.”

The court found that Cesar and Antonio had violated Penal Code section 415, subdivision (1) by making gang signs in an “aggressive” manner and using a gesture to indicate “[l]et's go.” ,,

Antonio, who had previously been declared a ward, was continued as a ward and placed in his parents' home on probation. Cesar was placed on probation without wardship in the custody of his parents. Cesar and Antonio timely filed notices of appeal.

Reasoning

Cesar and Antonio contend that the juvenile court's findings that they violated Penal Code section 415, subdivision (1) are not supported by substantial evidence.

Penal Code section 415, subdivision (1) provides: “Any person who unlawfully fights in a public place or challenges another person in a public place to fight” commits a misdemeanor. (Pen. Code, § 415, subd. (1).) Antonio and Cesar assert that their conduct was not a “challenge … to fight” because they were merely responding to a gang sign displayed by an occupant of a white Cadillac. …

But for the statements of Cesar and Antonio, no evidence was presented that a white Cadillac was within sight of Cesar and Antonio when they were observed by Baker, or that any occupant of any car or any other person made a gang sign that instigated the conduct of Cesar and Antonio observed by Baker. While the evidence before the juvenile court indicated that Cesar and Antonio were probably reacting to something they observed, the precise nature of their observations was unknown. They may have been reacting to a person, either in a vehicle or on the other side of the street, who was wearing red or whom one or both of them recognized as a Norteno gang member. Or they may have simply been trying to intimidate someone to whom they took a dislike.

The statutory language here applies to a “person who unlawfully … challenges another person in a public place to fight.”… A challenge to fight is prohibited because such a challenge may provoke a violent response that endangers not only the challenger but any other persons who may be in the public place where the challenge occurs. Because the statute is aimed at the inherent danger that a challenge will result in violence, it is irrelevant whether the challenger intended to actually cause a fight. The mere fact that the challenger may naively believe that his challenge will go unanswered does not reduce the danger that the challenge poses to both the challenger and the public….. If a person challenges another person to fight in a public place, he or she violates Penal Code section 415, subdivision (1). This analysis disposes of Antonio’s contention that his conduct could not have been a challenge to fight because he did not believe that a fight would actually occur.

Holding

Baker's testimony was sufficient to support a finding that the gestures that Cesar and Antonio made toward someone in a car or on the other side of the street were a challenge to fight. It was undisputed that these gestures were made in a public place. Thus, substantial evidence supports the juvenile court's findings that Cesar and Antonio violated Penal Code section 415, subdivision (1).

The juvenile court could have drawn the reasonable inference from this evidence that Cesar and Antonio made a gang challenge that identified them with the Poor Side Chicos gang because they wanted to enhance that gang's violent reputation and thereby further future criminal conduct by their Poor Side Chicos gang member friends.

You Decide 11.2: JONES V. CITY OF LOS ANGELES. 444 F.3d 1118 (9th Cir. 2006). Wardlaw J. [Dismissed and vacated 505 F.3d 1006 (9th 2007).] Crosby J.

Issue

Six homeless individuals, unable to obtain shelter on the night each was cited or arrested, filed this Eighth Amendment challenge to the enforcement of a City of Los Angeles ordinance that criminalizes sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles's city limits. Appellants seek limited injunctive relief from enforcement of the ordinance during nighttime hours, i.e., between 9:00 p.m. and 6:30 a.m., or at any time against the temporarily infirm or permanently disabled. We must decide whether the Eighth Amendment right to be free from cruel and unusual punishment prohibits enforcement of that law as applied to homeless individuals involuntarily sitting, lying, or sleeping on the street due to the unavailability of shelter in Los Angeles.

Facts

The facts underlying this appeal are largely undisputed. Edward Jones, Patricia Vinson, George Vinson, Thomas Cash, Stanley Barger, and Robert Lee Purrie ("Appellants") are homeless individuals who live on the streets of Los Angeles's Skid Row district. Appellees are the City of Los Angeles, Los Angeles Police Department ("L.A.P.D.") Chief William Bratton, and Captain Charles Beck ("Appellees" or "the City"). Federal law defines the term "homeless individual" to include:

 

(1) an individual who lacks a fixed, regular, and adequate nighttime residence; and

(2) an individual who has a primary nighttime residence that is--

(A) a supervised publicly or privately operated shelter designed to provide temporary living accommodations (including welfare hotels, congregate shelters, and transitional housing for the mentally ill);

(B) an institution that provides a temporary residence for individuals intended to be institutionalized; or

(C) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.

Appellants are six of the more than 80,000 homeless individuals in Los Angeles County on any given night. An estimated 253,000 individuals were homeless in Los Angeles County at some point during 2002.

The term "Skid Row" derives from the lumber industry practice of building a road or track made of logs laid crosswise over which other logs were slid. By the 1930s, the term was used to describe the area of town frequented by loggers and densely populated with bars and brothels. Beginning around the end of the nineteenth century, the area now known as Los Angeles's Skid Row became home to a transient population of seasonal laborers as residential hotels began to develop. For decades Skid Row has been home for "the down and out, the drifters, the unemployed, and the chronic alcoholic[s]" of Los Angeles. Covering fifty city blocks immediately east of downtown Los Angeles, Skid Row is bordered by Third Street to the north, Seventh Street to the south, Alameda Street to the east, and Main Street to the west.

Los Angeles's Skid Row has the highest concentration of homeless individuals in the United States. According to the declaration of Michael Alvidrez, a manager of single-room-occupancy ("SRO") hotels in Skid Row owned by the Skid Row Housing Trust, since the mid-1970s Los Angeles has chosen to centralize homeless services in Skid Row. The area is now largely comprised of SRO hotels (multi-unit housing for very low income persons typically consisting of a single room with shared bathroom), shelters, and other facilities for the homeless.

Skid Row is a place of desperate poverty, drug use, and crime, where Porta-Potties serve as sleeping quarters and houses of prostitution. Recently, it has been reported that local hospitals and law enforcement agencies from nearby suburban areas have been caught "dumping" homeless individuals in Skid Row upon their release. This led Los Angeles Mayor Antonio Villaraigosa to order an investigation into the phenomenon in September 2005. L.A.P.D. Chief William Bratton, insisting that the Department does not target the homeless but only people who violate city ordinances (presumably including the ordinance at issue), has stated:

"If the behavior is aberrant, in the sense that it breaks the law, then there are city ordinances. . . . You arrest them, prosecute them. Put them in jail. And if they do it again, you arrest them, prosecute them, and put them in jail. It's that simple."

The ordinance at issue was adopted in 1968. In the late 1980s, James K. Hahn, who served as Los Angeles City Attorney from 1985 to 2001 and subsequently as Mayor, refused to prosecute the homeless for sleeping in public unless the City provided them with an alternative to the streets. For the approximately 11,000-12,000 homeless individuals in Skid Row, space is available in SRO hotels, shelters, and other temporary or transitional housing for only 9000 to 10,000, leaving more than 1000 people unable to find shelter each night. In the County as a whole, there are almost 50,000 more homeless people than available beds.. In 1999, the fair market rent for an SRO room in Los Angeles was $ 379 per month. Yet the monthly welfare stipend for single adults in Los Angeles County is only $ 221. Wait-lists for public housing and for housing assistance vouchers in Los Angeles are three- to ten-years long.

The result, in City officials' own words, is that "'the gap between the homeless population needing a shelter bed and the inventory of shelter beds is severely large.'" As Los Angeles's homeless population has grown, (there is an estimating annualized growth of ten percent in Los Angeles's homeless population in the years up to and including 2003), the availability of low-income housing in Skid Row has shrunk, according to the declaration of Alice Callaghan, director of a Skid Row community center and board member of the Skid Row Housing Trust. According to Callaghan's declaration, at night in Skid Row, SRO hotels, shelters, and other temporary or transitional housing are the only alternatives to sleeping on the street; during the day, two small parks are open to the public. Thus, for many in Skid Row without the resources or luck to obtain shelter, sidewalks are the only place to be.

As will be discussed below, Appellants' declarations demonstrate that they are not on the streets of Skid Row by informed choice. In addition, the Institute for the Study of Homelessness and Poverty reports that homelessness results from mental illness, substance abuse, domestic violence, low-paying jobs, and, most significantly, the chronic lack of affordable housing. It also reports that between 33% and 50% of the homeless in Los Angeles are mentally ill, and 76% percent of homeless adults in 1990 had been employed for some or all of the two years prior to becoming homeless. Approximately 14% of homeless individuals in Los Angeles are victims of domestic violence.

Against this background, the City asserts the constitutionality of enforcing Los Angeles Municipal Code section 41.18(d) against those involuntarily on the streets during nighttime hours, such as Appellants. It provides:

No person shall sit, lie or sleep in or upon any street, sidewalk or other public way.

The provisions of this subsection shall not apply to persons sitting on the curb portion of any sidewalk or street while attending or viewing any parade permitted under …this Code; nor shall the provisions of this subsection supply [sic] to persons sitting upon benches or other seating facilities provided for such purpose by municipal authority by this Code. violation of section 41.18(d) is punishable by a fine of up to $ 1000 and/or imprisonment of up to six months.

Section 41.18(d) is one of the most restrictive municipal laws regulating public spaces in the United States. The City can secure a conviction under the ordinance against anyone who merely sits, lies, or sleeps in a public way at any time of day. Other cities' ordinances similarly directed at the homeless provide ways to avoid criminalizing the status of homelessness by making an element of the crime some conduct in combination with sitting, lying, or sleeping in a state of homelessness. For example, Las Vegas prohibits standing or lying in a public way only when it obstructs pedestrian or vehicular traffic. Others, such as Portland, prohibit "camping" in or upon anypublic property or public right of way. Still others contain safe harbor provisions such as limiting the hours of enforcement. Seattle, Washington provides that "No person shall sit or lie down upon a public sidewalk . . . during the hours between seven (7:00) a.m. and nine (9:00) p.m. in the following zones . . . ." Other cities follow Seattle and include as a required element sitting, lying, or sleeping in clearly defined and limited zones. As a result of the expansive reach of section 41.18(d), the extreme lack of available shelter in Los Angeles, and the large homeless population, thousands of people violate the Los Angeles ordinance every day and night, and many are arrested, losing what few possessions they may have. 2 Appellants are among them.

Robert Lee Purrie is in his early sixties. He has lived in the Skid Row area for four decades. Purrie sleeps on the streets because he cannot afford a room in an SRO hotel and is often unable to find an open bed in a shelter. Early in the morning of December 5, 2002, Purrie declares that he was sleeping on the sidewalk at Sixth Street and Towne Avenue because he "had nowhere else to sleep." At 5:20 a.m., L.A.P.D. officers cited Purrie for violating section 41.18(d). He could not afford to pay the resulting fine.

Purrie was sleeping in the same location on January 14, 2003, when police officers woke him early in the morning and searched, handcuffed, and arrested him pursuant to a warrant for failing to pay the fine from his earlier citation. The police removed his property from his tent, broke it down, and threw all of his property, including the tent, into the street. The officers also removed the property and tents of other homeless individuals sleeping near Purrie. After spending the night in jail, Purrie was convicted of violating section 41.18(d), given a twelve month suspended sentence, and ordered to pay $ 195 in restitution and attorneys' fees. Purrie was also ordered to stay away from the location of his arrest. Upon his release, Purrie returned to the corner where he had been sleeping on the night of his arrest to find that all the belongings he had left behind, including blankets, clothes, cooking utensils, a hygiene kit, and other personal effects, were gone.

Stanley Barger suffered a brain injury in a car accident in 1998 and subsequently lost his Social Security Disability Insurance. His total monthly income consists of food stamps and $ 221 in welfare payments. According to Barger's declaration, he "want[s] to be off the street" but can only rarely afford shelter. At 5:00 a.m. on December 24, 2002, Barger was sleeping on the sidewalk at Sixth and Towne when L.A.P.D. officers arrested him. Barger was jailed, convicted of violating section 41.18(d), and sentenced to two days time served.

When Thomas Cash was cited for violating section 41.18(d), he had not worked for approximately two years since breaking his foot and losing his job, and had been sleeping on the street or in a Skid Row SRO hotel. Cash suffers from severe kidney problems, which cause swelling of his legs and shortness of breath, making it difficult for him to walk. At approximately noon on January 10, 2003, Cash tired as he walked to the SRO hotel where he was staying. He was resting on a tree stump when L.A.P.D. officers cited him.

Edward Jones's wife, Janet, suffers serious physical and mental afflictions. Edward takes care of her, which limits his ability to find full-time work, though he has held various minimum wage jobs. The Joneses receive $ 375 per month from the Los Angeles County General Relief program, enabling them to stay in Skid Row SRO hotels for the first two weeks of each month. Because shelters separate men and women, and Janet's disabilities require Edward to care for her, the Joneses are forced to sleep on the streets every month after their General Relief monies run out. At 6:30 a.m. on November 20, 2002, Edward and Janet Jones were sleeping on the sidewalk at the corner of Industrial and Alameda Streets when the L.A.P.D. cited them for violating section 41.18(d).

Patricia and George Vinson, a married couple, were looking for work and a permanent place to live when they were cited for violating section 41.18(d). They use their General Relief payments to stay in motels for part of every month and try to stay in shelters when their money runs out. On the night of December 2, 2002, they missed a bus that would have taken them to a shelter and had to sleep on the sidewalk near the corner of Hope and Washington Streets instead. At 5:30 a.m. the next morning, L.A.P.D. officers cited the Vinsons for violating section 41.18(d).

The record before us includes declarations and supporting documentation from nearly four dozen other homeless individuals living in Skid Row who have been searched, ordered to move, cited, arrested, and/or prosecuted for, and in some cases convicted of, violating section 41.18(d). Many of these declarants lost much or all of their personal property when they were arrested.

On February 19, 2003, Appellants filed a complaint in the United States District Court for the Central District of California pursuant to 42 U.S.C. § 1983. They seek a permanent injunction against the City of Los Angeles and L.A.P.D. Chief William Bratton and Captain Charles Beck (in their official capacities), barring them from enforcing section 41.18(d) in Skid Row between the hours of 9:00 p.m. and 6:30 a.m. Appellants allege that by enforcing section 41.18(d) twenty-four hours a day against persons with nowhere else to sit, lie, or sleep, other than on public streets and sidewalks, the City is criminalizing the status of homelessness in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution, and Article I, sections 7 and 17 of the California Constitution, guaranteeing due process and equal protection and prohibiting cruel and unusual punishment. Relying heavily on Joyce v. City and County of San Francisco, 846 F. Supp. 843 (N.D. Cal. 1994), the district court held that enforcement of the ordinance does not violate the Eighth Amendment because it penalizes conduct, not status. This appeal timely followed….

Reasoning

The district court erred by not engaging in a more thorough analysis of Eighth Amendment jurisprudence under Robinson v. California, 370 U.S. 660, 1962), and Powell v. Texas, 392 U.S. 514 (1968), when it held that the only relevant inquiry is whether the ordinance at issue punishes status as opposed to conduct, and that homelessness is not a constitutionally cognizable status.

The district court relied exclusively on the analysis of Robinson and Powell by another district court in Joyce v. City and County of San Francisco, in which plaintiffs challenged certain aspects of San Francisco's comprehensive homelessness program on Eighth Amendment grounds. Joyce, however, was based on a very different factual underpinning than is present here. Called the "Matrix Program," the homelessness program was "'an interdepartmental effort . . . [utilizing] social workers and health workers . . . [and] offering shelter, medical care, information about services and general assistance.'" One element of the program consisted of the "Night Shelter Referral" program conducted by the Police Department, which handed out "referrals" to temporary shelters. The City demonstrated that of 3,820 referral slips offered to men, only 1,866 were taken and only 678 used.

The Joyce plaintiffs made only the conclusory allegation that there was insufficient shelter, they did not make the strong evidentiary showing of a substantial shortage of shelter Appellants make here. Moreover, the preliminary injunction plaintiffs sought in Joyce was so broad as to enjoin enforcement of prohibitions on camping or lodging in public parks and on "'life-sustaining activities such as sleeping, sitting or remaining in a public place,'" which might also include such antisocial conduct as public urination and aggressive panhandling. . Reasoning that plaintiffs' requested injunction was too broad and too difficult to enforce… the district court denied the injunction. The Joyce court also concluded that homelessness was not a status protectable under the Eighth Amendment, holding that it was merely a constitutionally noncognizable "condition."

We disagree with the analysis of Robinson and Powell conducted by both the district court in Joyce and the district court in the case at bar. The City could not expressly criminalize the status of homelessness by making it a crime to be homeless without violating the Eighth Amendment, nor can it criminalize acts that are an integral aspect of that status. Because there is substantial and undisputed evidence that the number of homeless persons in Los Angeles far exceeds the number of available shelter beds at all times, including on the nights of their arrest or citation, Los Angeles has encroached upon Appellants' Eighth Amendment protections by criminalizing the unavoidable act of sitting, lying, or sleeping at night while being involuntarily homeless.

A closer analysis of Robinson and Powell instructs that the involuntariness of the act or condition the City criminalizes is the critical factor delineating a constitutionally cognizable status, and incidental conduct which is integral to and an unavoidable result of that status, from acts or conditions that can be criminalized consistent with the Eighth Amendment.

Our analysis begins with Robinson, which announced limits on what the state can criminalize consistent with the Eighth Amendment. In Robinson, the Supreme Court considered whether a state may convict an individual for violating a statute making it a criminal offense to "'be addicted to the use of narcotics.'" The trial judge had instructed the jury that …”[a]ll that the People must show is . . . that while in the City of Los Angeles [Robinson] was addicted to the use of narcotics . . . ."

The Court reversed Robinson's conviction, reasoning:

It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. . . . In the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments….

We cannot but consider the statute before us as of the same category.

At a minimum, Robinson establishes that the state may not criminalize "being"; that is, the state may not punish a person for who he is, independent of anything he has done.

Six years after its decision in Robinson, the Supreme Court considered the case of Leroy Powell, who had been charged with violating a Texas statute making it a crime to "'get drunk or be found in a state of intoxication in any public place.' he has no control."

In a 4-1-4 decision, the Court affirmed Powell's conviction. The four Justices joining the plurality opinion interpreted Robinson to prohibit only the criminalization of pure status and not to limit the criminalization of conduct. …Because Powell was convicted not for his status as a chronic alcoholic, but rather for his acts of becoming intoxicated and appearing in public, the Powell plurality concluded that the Clause as interpreted by Robinson did not protect him.

In contrast, the four Justices in dissent read Robinson to stand for the proposition that "criminal penalties may not be inflicted on a person for being in a condition he is powerless to change." …[T]he dissenters addressed the involuntariness of Powell's behavior, noting that Powell had "'an uncontrollable compulsion to drink' to the point of intoxication; and that, once intoxicated, he could not prevent himself from appearing in public places." Having found that the Cruel and Unusual Punishment Clause, as interpreted by Robinson, protects against the criminalization of being in a condition one is powerless to avoid, and because Powell was powerless to avoid public drunkenness, the dissenters concluded that his conviction should be reversed.

The Robinson and Powell decisions, read together, compel us to conclude that enforcement of section 41.18(d) at all times and in all places against homeless individuals who are sitting, lying, or sleeping in Los Angeles's Skid Row because they cannot obtain shelter violates the Cruel and Unusual Punishment Clause.

As homeless individuals, Appellants are in a chronic state that may have been acquired "innocently or involuntarily." Whether sitting, lying, and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human. It is undisputed that, for homeless individuals in Skid Row who have no access to private spaces, these acts can only be done in public…..Appellants have made a substantial showing that they are "unable to stay off the streets on the night[s] in question."

In disputing our holding, the dissent veers off track by attempting to isolate the supposed "criminal conduct" from the status of being involuntarily homeless at night on the streets of Skid Row…. The City and the dissent apparently believe that Appellants can avoid sitting, lying, and sleeping for days, weeks, or months at a time to comply with the City's ordinance, as if human beings could remain in perpetual motion. That being an impossibility, by criminalizing sitting, lying, and sleeping, the City is in fact criminalizing Appellants' status as homeless individuals.

The state may not make it an offense to be idle, indigent, or homeless in public places. Nor may the state criminalize conduct that is an unavoidable consequence of being homeless--namely sitting, lying, or sleeping on the streets of Los Angeles's Skid Row. As Justice White stated in Powell, "punishing an addict for using drugs convicts for addiction under a different name.”

Homelessness is not an innate or immutable characteristic, nor is it a disease, such as drug addiction or alcoholism. But generally one cannot become a drug addict or alcoholic, as those terms are commonly used, without engaging in at least some voluntary acts (taking drugs, drinking alcohol). Similarly, an individual may become homeless based on factors both within and beyond his immediate control, especially in consideration of the composition of the homeless as a group: the mentally ill, addicts, victims of domestic violence, the unemployed, and the unemployable. That Appellants may obtain shelter on some nights and may eventually escape from homelessness does not render their status at the time of arrest any less worthy of protection than a drug addict's or an alcoholic's.

Undisputed evidence in the record establishes that at the time they were cited or arrested, Appellants had no choice other than to be on the streets. Even if Appellants' past volitional acts contributed to their current need to sit, lie, and sleep on public sidewalks at night, those acts are not sufficiently proximate to the conduct at issue here for the imposition of penal sanctions to be permissible. In contrast, we find no Eighth Amendment protection for conduct that a person makes unavoidable based on their own immediately proximate voluntary acts, for example, driving while drunk, harassing others, or camping or building shelters that interfere with pedestrian or automobile traffic.

Holding

Our holding is a limited one. We do not hold that the Eighth Amendment …. prevents the state from criminalizing conduct that is not an unavoidable consequence of being homeless, such as panhandling or obstructing public thoroughfares. And we are not called upon to decide the constitutionality of punishment when there are beds available for the homeless in shelters.

We hold only that just as the Eighth Amendment prohibits the infliction of criminal punishment on an individual for being a drug addict, or for involuntary public drunkenness that is an unavoidable consequence of being a chronic alcoholic without a home, he Eighth Amendment prohibits the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.

We do not suggest that Los Angeles adopt any particular social policy, plan, or law to care for the homeless. We do not desire to encroach on the legislative and executive functions reserved to the City Council and the Mayor of Los Angeles. There is obviously a "homeless problem" in the City of Los Angeles, which the City is free to address in any way that it sees fit, consistent with the constitutional principles we have articulated. See id. By our decision, we in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets of Los Angeles at any time and at any place within the City. All we hold is that, so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds, the City may not enforce section 41.18(d) at all times and places throughout the City against homeless individuals for involuntarily sitting, lying, and sleeping in public. Appellants are entitled at a minimum to a narrowly tailored injunction against the City's enforcement of section 41.18(d) at certain times and/or places.

We reverse the award of summary judgment to the City, grant summary judgment to Appellants, and remand to the district court for a determination of injunctive relief consistent with this opinion.

Rymer, J., dissenting:

Los Angeles Municipal Code (LAMC) § 41.18(d) does not punish people simply because they are homeless. It targets conduct -- sitting, lying or sleeping on city sidewalks -- that can be committed by those with homes as well as those without. …Neither the Supreme Court nor any other circuit court of appeals has ever held that conduct derivative of a status may not be criminalized. … [T]he City cannot penalize the status of being homeless plus the condition of being without shelter that exists by virtue of the City's failure to provide sufficient housing on any given night. The ramifications of so holding are quite extraordinary. We do not -- and should not -- immunize from criminal liability those who commit an act as a result of a condition that the government's failure to.

Jones argues that LAMC § 41.18(d) makes criminal what biology and circumstance make necessary, that is, sitting, lying, and sleeping on the streets. He maintains that the gap between the number of homeless persons in Los Angeles, and the number of available shelter beds, leaves thousands without shelter every night. Jones claims that the situation is particularly acute on Skid Row, where most homeless shelters and services have been centralized. As Jones puts it, so long as there are more homeless people than shelter beds, "the nightly search for shelter will remain a zero-sum game in which many of the homeless, through no fault of their own, will end up breaking the law." By enforcing the ordinance, Jones contends, the City subjects homeless persons to a cycle of citation, arrest, and punishment for the involuntary and harmless conduct of sitting or lying in the street. Accordingly, he seeks to bring the ordinance "in line with less draconian ordinances in other cities" by barring its enforcement in Skid Row during nighttime hours.

Jones relies on Robinson v. California, to argue that persons cannot be punished for their status alone. …Jones submits that as the City could not expressly criminalize the status of being homeless without offending the Eighth Amendment, it cannot enforce the ordinance when the number of homeless persons exceeds the number of available shelter beds because to do so has the effect of criminalizing homelessness….

[A]pplication of LAMC § 41.18(d) to Jones's situation is not the "rare type of case" for which the Cruel and Unusual Punishment Clause limits what may be criminalized. Robinson does not apply to criminalization of conduct. Its rationale is that the California statute penalizing addiction failed to criminalize conduct, and this failure is what made it unconstitutional. …The plurality in Powell interpreted Robinson this way, and in a view that is binding on us now …[as] the offense here is the act of sleeping, lying or sitting on City streets, Robinson does not apply.

Also, in the rare case exemplified by Robinson, the status being criminalized is an internal affliction, potentially an innocent or involuntary one. ….Although the majority acknowledges that homelessness is neither a disease nor an innate or immutable characteristic, it nevertheless holds that Jones, as a homeless individual, is "in a chronic state that may have been 'contracted innocently or involuntarily.'" Being homeless, however, is a transitory state. Some people fall into it, others opt into it. For many, including the homeless persons who pursue this action, it is a status that fluctuates on a daily basis and can change depending upon income and opportunities for shelter. Many

In further contrast to Robinson, where the Court noted that California through its statute "said that a person can be continuously guilty of this offense [being addicted to the use of narcotics], whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there." Los Angeles through its ordinance does not purport to say that "a person can be continuously guilty of this offense," whether or not he has ever slept on a City street. This is important for two reasons: first, because it shows that the statute itself does not suffer the Robinson defect of making the status of being homeless a criminal offense; and second, because there is no evidence that Jones or any of the parties joining with him -- including Purrie or Barger, who were convicted of violating LAMC §41.18(d) -- were unable to stay off the sidewalk on the night they were arrested. For this reason, Jones cannot prevail on the evidence presented … Despite this, the majority here reasons that … Purrie and Barger made a substantial showing that they are "unable to stay off the streets on the night[s] in question," because "all human beings must sit, lie, and sleep, and hence must do these things somewhere. It is undisputed that, for homeless individuals in Skid Row who have no access to private spaces, these acts can only be done in public."

As the majority's opinion seems to me contrary to the Supreme Court's instruction to apply Robinson sparingly, and instead applies it expansively, I dissent. I believe the district court correctly concluded that the … limits on what can be made criminal and punished as such do not extend to an ordinance that prohibits the acts of sleeping, sitting or lying on City streets. Accordingly, I would affirm.

You Decide 11.3: Brown v. Entertainment Merchants Association, __ U.S.___, 131 S. Ct. 2729 (2011). Opinion by: Scalia, A.

Issue

We consider whether a California law imposing restrictions on violent video games comports with the First Amendment.

Facts

California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§1746–1746.5, prohibits the sale or rental of “violent video games” to minors unless accompanied by an adult, and requires their packaging to be labeled “18.” The Act covers games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.” Violation of the Act is punishable by a civil fine of up to $1,000.

Respondents, representing the video-game and software industries, brought a pre-enforcement challenge to the Act in the United States District Court for the Northern District of California. That court concluded that the Act violated the First Amendment and permanently enjoined its enforcement.

The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. “Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.” Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, “esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.” And whatever the challengesOMIT hyphen of applying the Constitution to ever-advancing technology, “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary” when a new and different medium for communication appears.

The most basic of those principles is this: “[A]s a general matter . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” There are of course exceptions. “‘From 1791 to the present’ . . . the First Amendment has ‘permitted restrictions upon the content of speech in a few limited areas,’ and has never ‘include[d] a freedom to disregard these traditional limitations.‘” These limited areas—such as obscenity, incitement, and fighting words—represent “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.”

California does not argue that it is empowered to prohibit selling offensively violent works to adults. . . . Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children. That is unprecedented and mistaken. “[M]inors are entitled to a significant measure of First Amendment protection” . . . . No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed. “Speech that is neither obscene… nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.”

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.

California claims that video games present special problems because they are “interactive,” in that the player participates in the violent action on screen and determines its outcome. The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own-adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to. As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind. As Judge Posner of the Seventh Circuit Court of Appeals has observed, all literature is interactive. “[T]he better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”

Justice Alito has done considerable independent research to identify video games in which “the violence is astounding.” “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools.” Justice Alito recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. And the same is true of Justice Alito’s description of those video games he has discovered that have a racial or ethnic motive for their violence—“‘ethnic cleansing’ [of] . . . African Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, Justice Alito’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.

Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. The State must specifically identify an “actual problem” in need of solving, and the curtailment of free speech must be actually necessary to the solution. That is a demanding standard. “It is rare that a regulation restricting speech because of its content will ever be permissible.”

California cannot meet that standard. . . . The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively. Instead, “[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.

Even taking for granted Dr. Anderson’s conclusions that violent video games produce some effect on children’s feelings of aggression, those effects are both small and indistinguishable from effects produced by other media. In his testimony in a similar lawsuit, Dr. Anderson admitted that the “effect sizes” of children’s exposure to violent video games are “about the same” as that produced by their exposure to violence on television. And he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner, or when they play video games like Sonic the Hedgehog that are rated “E” or even when they “vie[w] a picture of a gun.”

Of course, California has (wisely) declined to restrict Saturday morning cartoons, the sale of games rated for young children, or the distribution of pictures of guns. The consequence is that its regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it. Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint. Here, California has singled out the purveyors of video games for disfavored treatment—at least when compared to booksellers, cartoonists, and movie producers—and has given no persuasive reason why.

The Act is also seriously underinclusive in another respect. . . . The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it’s OK. And there are not even any requirements as to how this parental or avuncular relationship is to be verified; apparently the child’s or putative parent’s, aunt’s, or uncle’s say-so suffices. That is not how one addresses a serious social problem.

California claims that the Act is justified in aid of parental authority: By requiring that the purchase of violent video games can be made only by adults, the Act ensures that parents can decide what games are appropriate. At the outset, we note our doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority. Accepting that position would largely undermine the rule that “only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to [minors].”

The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games. The system, implemented by the Entertainment Software Rating Board (ESRB), assigns age-specific ratings to each video game submitted: EC (Early Childhood); E (Everyone); E10+ (Everyone 10 and older); T (Teens); M (17 and older); and AO (Adults Only—18 and older). The Video Software Dealers Association encourages retailers to prominently display information about the ESRB system in their stores; to refrain from renting or selling adults-only games to minors; and to rent or sell “M” rated games to minors only with parental consent. In 2009, the Federal Trade Commission (FTC) found that, as a result of this system, “the video game industry outpaces the movie and music industries” in “(1) restricting target-marketing of mature-rated products to children; (2) clearly and prominently disclosing rating information; and (3) restricting children’s access to mature-rated products at retail.” This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned-parents’ control can hardly be a compelling state interest.

And finally, the Act’s purported aid to parental authority is vastly overinclusive. Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want. . . .

Holding

We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development. Our task is only to say whether or not such works constitute a “well-defined and narrowly limited clas[s] of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,” and if not, whether the regulation of such works is justified by that high degree of necessity we have described as a compelling state interest (it is not). Even where the protection of children is the object, the constitutional limits on governmental action apply.

As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. . . .

Breyer, J., dissenting.

California’s law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help. All it prevents is a child or adolescent from buying, without a parent’s assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17.

The interest that California advances in support of the statute is compelling. As this Court has previously described that interest, it consists of both (1) the “basic” parental claim “to authority in their own household to direct the rearing of their children,” which makes it proper to enact “laws designed to aid discharge of [parental] responsibility,” and (2) the State’s “independent interest in the well-being of its youth.”

As to the need to help parents guide their children, the Court noted in 1968 that “parental control or guidance cannot always be provided.” Today, 5.3 million grade-school-age children of working parents are routinely home alone. Thus, it has, if anything, become more important to supplement parents’ authority to guide their children’s development.

As to the State’s independent interest, we have pointed out that juveniles are more likely to show a “lack of maturity’” and are “more vulnerable or susceptible to negative influences and outside pressures,” and that their “character . . . is not as well formed as that of an adult.” And we have therefore recognized “a compelling interest in protecting the physical and psychological well-being of minors. . . .”

There are many scientific studies that support California’s views. Social scientists, for example, have found causal evidence that playing these games results in harm. Longitudinal studies, which measure changes over time, have found that increased exposure to violent video games causes an increase in aggression over the same period. Experimental studies in laboratories have found that subjects randomly assigned to play a violent video game subsequently displayed more characteristics of aggression than those who played nonviolent games.

I can find no “less restrictive” alternative to California’s law that would be “at least as effective.” The . . . voluntary system has serious enforcement gaps. . . . . [A]s of the FTC’s most recent update to Congress, 20% of those under 17 are still able to buy M-rated video games, and, breaking down sales by store, one finds that this number rises to nearly 50% in the case of one large national chain. . . . The industry also argues for an alternative technological solution, namely “filtering at the console level.” But it takes only a quick search of the Internet to find guides explaining how to circumvent any such technological controls.

The upshot is that California’s statute, as applied to its heartland of applications (i.e., buyers under 17; extremely violent, realistic video games), imposes a restriction on speech that is modest at most.

I add that the majority’s different conclusion creates a serious anomaly in First Amendment law. [A] State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most violent interactive video games. But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?

[E]xtreme violence, where interactive, and without literary, artistic, or similar justification, can prove at least as, if not more, harmful to children as photographs of nudity. And the record here is more than adequate to support such a view. . . .

CHAPTER TWELVE

You Decide 12.1: Rogers v. State, 224 S.W.3d 564 (Ark. 2006).

Robbins, J.

Appellant Charles Rogers appeals his conviction for driving while intoxicated as entered by the Washington County Circuit Court after a bench trial. Appellant contends on appeal that the conviction is not supported by sufficient evidence that he was in actual physical control of the vehicle under Arkansas law. We agree, mandating that we reverse the conviction.

The facts are not in material dispute. Appellant agrees he was intoxicated when two Fayetteville police officers found him asleep or passed out in his vehicle, a Cadillac Escalade, in the driver's seat. The vehicle was parked outside an Elk's lodge at about 2:00 a.m. on January 7, 2004, in Fayetteville, Arkansas. The vehicle's engine was running with exhaust visible from the tailpipe; the headlights and taillights were on. It was a very cold night, well below freezing. Officers tapped on the window, and with some persistence eventually aroused appellant from sleep. Appellant's foot appeared to the officers to be on the brake pedal. Appellant turned the vehicle off and exited to speak to the officers. The officers testified that the vehicle keys were recovered from the front passenger area of the vehicle, although the officers could not recall where. The officers denied knowing anything about how remote-start worked.

Appellant testified that he had been driven back to his vehicle by a friend and had started the engine of his vehicle by pressing a remote-start button. He stated that after his vehicle had warmed for a few minutes, he promised his friend that he would enter his Escalade and sleep until he was safe to drive. Appellant testified that once he entered his Escalade, the keys were never in the ignition but rather were on the floorboard.

Appellant had the electronics technician who installed the remote-start testify on his behalf. The technician stated that the only way to turn off the engine after being remotely started is by pushing the remote button again or pressing the brake pedal. He said that remote-start turns on the head and tail lights, and any accessories are available to use, such as the radio, the heat and air conditioning, and the like.

The technician reviewed the videotape of the police encounter taken by the patrol car's mounted camera. The technician stated that the tape showed that the brake lights were not on because, if they were, a third brake light would be activated in the back window. Instead, only the head and tail lights were on. Furthermore, had the brake pedal been depressed, the vehicle's engine and accessories would have stopped. The technician stated that the tape showed that when appellant was encountered by the police officers, appellant reached down to the floorboard at appellant's left foot to grab the key ring and then pushed the button on the key fob to turn off remote-start. The technician explained that when in remote-start, one cannot drive the vehicle because the steering is locked and the gear shift is locked. The only way to actually move it is to put the keys into the ignition and turn the ignition to the run position, then brake and shift into gear.

Appellant's friend testified that he took appellant as a guest inside the Elk's lodge, where they listened to music and drank a bit. Later on that night, the friend drove appellant to Bobbisox lounge where appellant drank too much. The friend drove appellant back to the lodge, where appellant remote-started the Escalade so it would get warm. His friend said appellant promised he would not drive but would only sleep in his Escalade until he was capable of driving safely.

Appellant moved for directed verdict or dismissal at the appropriate times, arguing that pursuant to Arkansas appellate case law interpreting the DWI statute, there lacked proof that he was in "actual physical control" of the vehicle. Those motions were denied. This argument was amplified by defense counsel in closing argument, explaining that the cases required proof that the keys were in the ignition. The State argued that even if the keys were not in the ignition, the engine was running, which was a sufficient showing of control.

At the conclusion of the evidence, the trial court announced its decision. The trial court found as facts that appellant had been out with his friend drinking that night; that he started his Escalade using the remote-start button while sitting in the friend's vehicle; that some minutes later appellant entered his vehicle and sat in the driver's seat with the engine running; that when officers encountered him, appellant's foot was on the brake pedal, though not necessarily critical to the outcome of the case; and that appellant turned off the engine by use of the remote-start button. The trial court acknowledged that prior case law had held that if the keys to a vehicle were not in the ignition, then there was not sufficient evidence of actual physical control over the vehicle for purposes of DWI. Nonetheless, the trial court stated that this set of facts was distinguishable, without explaining how, and that appellant was guilty of DWI. This appeal followed.

Pursuant to Arkansas Code Annotated section 5-65-103(a) (Supp.2005), "[i]t is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle." Viewing the evidence in the light most favorable to the State, there is no evidence that the keys were in the ignition, nor did the trial court find such to be the case. The Omnibus DWI Act of 1983, from which the DWI statute came, was enacted because the legislature declared "that the act of driving a motor vehicle while under the influence . . . constitutes a serious and immediate threat to the safety of all citizens of this State[.]" The Emergency Clause to Act 549 of 1983. The purpose of Arkansas laws against driving while intoxicated is to prevent accidents and protect persons from injury. The case law developed in this area makes clear that if a person does not place the keys in the ignition, then this scenario falls short of the proof necessary to establish actual physical control of the vehicle for purposes of DWI. Whether this demarcation line is reasonable or effective in attaining the purpose of ensuring public safety is not for our court to decide. It is, however, the law in Arkansas. The case law argued by both sides in this case are considered herein.

In Wiyott v. State, 683 S.W.2d 220 (1985) ,Wiyott was found asleep behind the wheel of his car with the keys in the ignition, and when awakened by the police, Wiyott tried to start his car. Our supreme court held that this was sufficient evidence of actual physical control. The Wiyott case explained that the control contemplated meant more than the ability to stop an automobile, but meant the ability to keep from starting, to hold in subjection, to exercise directing influence over, and the authority to manage. As interpreted thus far by our supreme court and applied by our court, the issue of actual physical control has not turned on whether the defendant is awake when observed, whether the defendant is behind the wheel, or whether the engine is running. The supreme court in Dowell set out a bright-line rule that actual physical control begins when the keys are located in the ignition. In the present appeal, the State did not prove that the keys were in the ignition. The trial court did not find that the keys were in the ignition, nor did any evidence show that the keys were in the ignition. Rather, the trial court accepted appellant's version of events as true. The State did not counter appellant's evidence that the car was not moveable unless and until the keys were placed in the ignition, nor do the dissenting judges disagree with that assertion. Criminal statutes are to be construed strictly in favor of the accused, and we are powerless to declare an act to come within the criminal laws by implication. In this instance, the State failed to present sufficient evidence that appellant was a menace to public safety, as the statutory language "actual physical control" has been interpreted by our appellate courts. Therefore, the conviction is not supported by sufficient evidence of an essential element and must be reversed.

BIRD, J. dissenting

I respectfully disagree with the majority's conclusion that the evidence was not sufficient to show that appellant, Charles Rogers, was in actual physical control of his vehicle within the meaning of our DWI statute. I believe that the evidence was sufficient, and I would affirm Rogers's conviction for fourth-offense DWI.

The majority relies on Dowell v. State in which our supreme court held that where the intoxicated occupant of an automobile was found to be asleep or passed out behind the steering wheel of an automobile without the key in the automobile's ignition and with the motor not running, there was insufficient evidence to support the trial court's finding that he was in the actual physical control of the automobile within the DWI statute. The majority also cites Stepenson v. City of Fort Smith, which contains a similar holding by this court. However, in neither nor, was there evidence that the automobiles involved were susceptible of being started except by inserting and turning a traditional key in the automobile's ignition switches.

I do not disagree with the holdings of the Dowell and Stephenson cases. I simply question their applicability in the case at bar, where the evidence is undisputed that: (1) at the time of his arrest, Rogers's automobile was equipped with an "auto-start" device that eliminated the need for a traditional key to start or stop the engine, or to operate the accessories of his automobile; (2) Rogers admittedly started the engine of his automobile with the use of the auto-start device; (3) the engine of the automobile was running and the headlights, taillights, and heater were on as the police officers approached his automobile; (4) Rogers was sitting intoxicated in the driver's seat of his automobile; and (5) when Rogers was awakened by an officer, he used the auto-start device to turn off the motor of his automobile.

The technician who installed the auto-start device in Rogers's car testified that when started with auto-start, the automobile's radio and heater become "active" and, thus, susceptible to the normal control of the driver. He also testified that when the automobile's engine is ignited with auto-start, the car could be driven away by turning the key to the "on" position, pressing the brake, and putting the transmission in gear. Rogers himself testified that his purpose in using the auto-start was to warm up his automobile so he could sit in it until he was sober enough to drive home. In my opinion, a person who has the power to start and stop his automobile's engine by the pushing of a remote button, and the power to operate his automobile's heater, radio, and other accessories is a person who is exercising direct influence over the operation and management of his vehicle. As the supreme court said in, "control" within the meaning of our DWI law means more than simply the ability to stop and start one's automobile.

The majority concludes that in Dowell, "the supreme court has set out a brightline rule that actual physical control begins when the keys are located in the ignition." This might have been true in 1982 when Dowell was arrested, because in 1982 an automobile was started by placing the key in its ignition at the "off" position, twisting the key past the "on" position to the "start" position, and holding the key in the "start" position long enough for the automobile's engine to ignite. The 1982 driver could then press the brake pedal, place the automobile in gear, and drive away. However, in 2004, when Rogers was arrested, the engine in his Cadillac Escalade could have been ignited with the simple press of a remotely-located button. At that point, Rogers could have inserted his key in the ignition at its "off" position, turned the key to the "on" position, pressed the brake pedal, put the automobile in gear, and driven away. Having already started his engine with auto-start, Rogers could have skipped the twisting of the key to the "start" position because the automobile's engine was already running.

Comparing these two automobile-starting techniques, it is clear to me that it would be just as easy, if not easier, for a drunken person to wake up and drive off in an automobile that is already running as it would be to wake up and start a non-running automobile that has its key in the ignition. This is especially true if the drunken person with auto-start knows where his automobile key is located, as was the evidence in this case.

I do not believe that it is the public policy of Arkansas, expressed through Ark.Code Ann. § 5-65-103(a) (Repl.1997), to simply discourage intoxicated persons from placing their keys in the ignition switches of their automobiles. Rather, I believe that it is the public policy of Arkansas to discourage intoxicated persons from placing themselves behind the steering wheels of automobiles under circumstances that permit them to exercise directing influence and management authority over their automobiles. In this regard, I see no distinction between the degree of control over the operation of an automobile that is exercised by a drunken person who merely inserts his traditional key in a non-running automobile's ignition switch and the degree of control exercised by a drunken person who has in his pocket, or otherwise readily accessible to him, a device that allows him to start or stop his automobile's engine without a key in its ignition switch. The only difference is that the traditional key must be manually inserted in the ignition, whereas with auto-start, the "key" is "inserted" electronically with the push of a remote button. Either way, the automobile, with a drunk driver at the wheel, becomes a potentially lethal weapon with the twist of a key.

I do not mean to suggest by this dissenting opinion that potentially drunk drivers should be discouraged from getting into their automobiles and "sleeping it off," rather than attempting to drive after they have been drinking. Under Dowell, , they are still free to do this, remaining immune from prosecution for DWI, by simply leaving the engine off and the key out of the ignition, even if their automobile is equipped with auto-start.

I respectfully dissent, and I am authorized to state that Judge GRIFFEN joins in this.

GRIFFEN, J. dissenting.

I write separately to further emphasize that appellant's conduct represented precisely the type of public menace that the DWI statute is designed to prevent; that he posed just as strong a menace to the public as any drunk person passed out behind the wheel of his running vehicle with the keys in the ignition; and that the auto-start technology he had installed into his vehicle did not lessen the threat that he posed.

The purpose of the DWI statute is not only to prevent intoxicated persons from driving on the highways, but to also prevent intoxicated persons from having such control over motor vehicles that they may become a menace to the public at any moment by driving the vehicle. If a stone-cold drunk driver with a blood-alcohol content of nearly twice the legal limit who has his foot on the brake with the engine running while he is sitting behind the wheel of his vehicle does not pose the kind of menace that the DWI statute was enacted to prevent, I suspect that comes as a big surprise to the members of the Arkansas General Assembly who enacted the "actual physical control" aspect of the statute. I also suspect that most of the driving public believes that someone in that state who is sitting behind the wheel of a running vehicle with his foot on the brake may become a menace at any moment.

The majority opinion purports to respect the purpose of the DWI statute, yet ignores critical testimony from Officer Knotts and appellant plainly proving that appellant posed precisely the type of "public menace" the DWI statute is designed to prevent. Appellant used his key fob to engage auto-start. He then remained in the front seat, behind the steering wheel with the engine running. Appellant kept the keys within his immediate reach, as proven by the fact that he used the key fob to turn off the vehicle when Knotts aroused him. Appellant told Knotts that he was waiting for someone to pick him up. At trial, however, appellant offered two contradictory explanations for being in his vehicle that also contradicted what he told Knotts at the scene: that he "was just going to go to sleep until the morning" and that he "just planned to sleep there until I felt like I was all right to be able to drive."

The latter intent, especially, presents the precise danger that the DWI statute was designed to prevent: that an intoxicated person, whose judgment, coordination, and reflexes are severely compromised will, to the detriment of the public, arouse from his drunken stupor and decide that he is capable of driving safely. This threat seems especially pronounced in the instant case because appellant was parked on private property, which would at some point, require him to move his vehicle. The threat posed by appellant, although ignored by the majority opinion, was expressly recognized by the trial judge, who noted that the DWI statute was designed to deter those who are intoxicated from "getting themselves in a situation that Mr. Rogers has put himself in intentionally."

Appellant argues as if the number of steps required to take the vehicle out of auto-start so that it can be driven normally are so insurmountable as to preclude a finding that he could easily make the vehicle operable again, and thereby precludes the danger of him becoming a public menace. This simply is not so. The person who installed the auto-start device on appellant's car testified that even if the vehicle is started using auto-start, the vehicle can be driven normally by putting the key in the ignition, then braking and shifting the car into gear. However, these are the same steps that would be required of any driver, whether that driver possessed an auto-start device or not. The only "additional" step required to operate the vehicle normally once it is in auto-start is to simply place the key in the ignition.

Auto-start technology allows a person to start a vehicle, which is a prerequisite to driving it. Drunk drivers are, by definition, drunk starters, whether they start their vehicles by auto-start or by conventional means. A driver who chooses to enjoy the benefits of auto-start remote technology has no right to expect an exemption from prosecution for DWI when he chooses to become legally intoxicated, start his engine, and get behind the wheel of his vehicle. While we do not declare an act to come within the criminal laws by implication, affirming appellant's conviction here would no more violate that rule than affirming in any other case in which control has been found where the defendant was not actually driving the vehicle.

This case clearly demonstrates that auto-start technology does not lessen the control that a driver may exercise over a vehicle. Instead, auto-start technology provides an alternative method by which a driver may exercise actual physical control over his vehicle. The evidence in this case overwhelmingly demonstrates that appellant exercised actual physical control over his vehicle and posed a threat to the public although the keys were not in his ignition. Hopefully, our supreme court will correct the misjudgment reflected by the majority opinion and, in doing so, will vindicate the public condemnation against drunk driving that the Arkansas General Assembly recognized when it enacted the "actual physical control" element of the DWI statute. In the meantime, I respectfully dissent.

You Decide 12.2: Farmer v. State. 411 S.W.3d 901 (2013) Ct. of Crim. App.

Appellant, Kody William Farmer, was convicted of driving while intoxicated and sentenced to 90 days' confinement and to pay a $200 fine. His sentence of confinement was suspended for one year of community supervision. The question presented in this case is whether there was sufficient evidence adduced at trial to entitle Appellant to a jury-charge instruction on voluntariness. The court of appeals held that Appellant was entitled to a voluntariness instruction.. We will reverse the judgment of the court of appeals and affirm the judgment of the trial court.

Appellant suffered from chronic back pain due to a work-related injury. As a result, he had taken different medications on and off for more than 10 years, including Ultram,1 a painkiller, and Soma, a muscle relaxer. Also, four days prior to the incidents in question, Appellant was prescribed Ambien, a sleep aid, for the first time to assist with his insomnia. Ambien and Soma are considered controlled substances by the Federal Government, and all three drugs come with warnings that they may cause drowsiness.

In the morning, Appellant would usually take his Ultram, and sometimes his Soma, before getting in the shower. To help Appellant make sure he took his medication, Appellant's wife would lay out Appellant's medicine for him to take. The morning of the incident in question, Appellant's wife laid out his Ultram and Ambien on their microwave, but she separated the pills so that Appellant would take the Ambien at night because "both his doctor and his pharmacist recommended that he be within minutes of going to bed before taking Ambien."

During questioning following the accident, Appellant stated that he did not remember taking any of his medication. But he did admit after watching a video of his actions that he did not have the normal use of his mental or physical faculties. Appellant testified that he took Ultram that morning and "I guess Soma. I thought — is what I thought I was taking." He also testified that he did not intentionally or voluntarily take Ambien, and that he does not know how it was introduced into his body because he had never taken Ambien before. However, in response to the question of how Ambien was found in his blood if he had never taken the medication before, he answered, "I don't know. I don't know. I guess it was taken by mistake." Appellant's wife did not remember seeing Appellant take his medication that morning, but she remembered that "the Ambien I laid out for the night that was on the other side of [the] microwave was gone." She also testified that she was a hundred percent certain that "he took what I had laid out."

Under Texas law, a person commits an offense if the person is intoxicated while operating a motor vehicle in a public place. TEX. PENAL CODE § 49.04(a). A person is intoxicated if he or she has a blood alcohol concentration of .08 or higher or does not have the normal use of his mental or physical faculties. Id. § 49.01(2). In cases not involving alcohol, such as this case, the latter standard must be proven. The offense of driving while intoxicated is a strict liability crime meaning that it does not require a specific mental state (e.g., intentionally, knowingly, or recklessly intending to operate a motor vehicle while intoxicated), only a person on a public roadway voluntarily operating a motor vehicle while intoxicated.

Viewed in the light most favorable to Appellant, the record reflects that Appellant's wife laid out the medication that Appellant was supposed to take the day of the accidents. Likewise, the record also reflects that Appellant's wife testified that one of the medications was Ambien, and that later, she saw that both pills she had set out for her husband were gone. Presumably, Appellant ingested both pills by mistake, including the Ambien.7 That theory is supported by the blood-test results that showed Appellant had Ambien in his system at, or near, the time of the incident, although he had testified that he had never taken Ambien before.

Appellant's argument on discretionary review is limited to asserting that Appellant did not voluntarily take the Ambien pill. Thus, we do not address any other conduct on the part of Appellant.

The court of appeals focused on whether the action of Appellant's wife's in placing the Ambien on the microwave caused Appellant to involuntarily take the Ambien because he thought it was a different prescription medication. However, whether Appellant took Ambien by mistake or on purpose is irrelevant to our analysis when determining if there was a voluntary act under Section 6.01(a) of the Texas Penal Code. The proper inquiry in this case is whether Appellant voluntarily picked up and ingested prescription medication. Rogers, 105 S.W.3d at 637-38 (stating that "[v]oluntary conduct `focuses upon conduct that is within the control of the actor'"). Even Appellant admitted that he thought that he took the Ambien by mistake,8 and no evidence contradicted that testimony. To the contrary, as we noted, the blood test supported that hypothesis.

All that is necessary to satisfy Section 6.01(a) of the Texas Penal Code is that the commission of the offense included a voluntary act. See Rogers, 105 S.W.3d at 638. Appellant makes no allegation that his arm movement to pick up and ingest the medication was the result of anything other than his own conscious action, and no other evidence at trial supported Appellant's request for a jury instruction on voluntariness. Appellant may have mistakenly taken the wrong prescription medication, but the evidence supports the conclusion that he voluntarily picked up the prescription medication from the microwave and ingested it. Stated another way, this is not a case of unknowingly or unwillingly taking pharmaceutical medication (similar to Torres); this is a case of knowingly taking pharmaceutical medication but mistakenly taking the wrong one. While we may be sympathetic to a "mistake," Appellant was involved in two accidents because of his "mistake." Even if Appellant took the medication in error, that error was made because Appellant did not take the time to verify the medication he was taking, although he knew that he was prescribed medications that could have an intoxicating effect. Based on the foregoing analysis, we hold that the trial court properly denied Appellant's request to include a defensive instruction on voluntariness, even when the evidence is viewed in the light most favorable to Appellant.

We conclude that Appellant's action in taking the Ambien pill was a voluntary act because Appellant, of his own volition, picked up and ingested the Ambien pill. It is of no consequence that Appellant mistakenly took the wrong prescription medication when he knew that he was taking a prescription medication and was aware that he was prescribed medications with intoxicating effects. Moreover, because no other evidence at trial raised an issue of Appellant's voluntariness in taking that medication, the trial court properly denied Appellant's request. As a result, the court of appeals erred when it reversed the judgment of the trial court. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

COCHRAN, J., filed a concurring opinion in which JOHNSON, J., joined.

I concur in the majority's resolution of this appeal, but I cannot join its reasoning. Texas, like most states, recognizes an affirmative defense of involuntary intoxication, and it applies even in DWI cases. Appellant offered evidence that he was involuntarily intoxicated and requested instructions on that defense. I think that the trial judge erred in refusing to include any instruction on that defense. But appellant did not complain about the failure to give the "involuntary intoxication" charge on appeal. Instead, he complained about other jury instructions. I agree that appellant was not entitled to instructions on an involuntary act, therefore I concur with the majority on its resolution of the case.

Appellant was charged with driving while intoxicated due to the introduction of one or more of three prescription medicines — zolpidem (Ambien), tramadol (Ultram), and carisoprodol (Soma). The evidence at trial showed that at about 8:00 a.m. one Saturday morning, Randall Cox was driving to a Boy Scout meeting when he saw appellant's SUV suddenly looming behind him on the freeway. Mr. Cox could not move out of the way fast enough to avoid being rear-ended by the speeding SUV.

After being hit, Mr. Cox pulled over, and waved to appellant to pull over as well. Appellant took a long time to pull over and stop. Mr. Cox walked up to appellant, who was "staggering and weaving" as he got out of his car. When Mr. Cox asked him for his insurance information, appellant gave him a business card instead. When he finally obtained appellant's driver's license, Mr. Cox looked on the back side for medical information because it seemed that appellant had a problem standing up and looked "impaired." He was slurring his words, but he didn't smell of alcohol. While Mr. Cox was calling 911 to report the accident and tell the dispatcher that appellant "needed help," he looked up to see appellant driving off. The 911 operator asked Mr. Cox if he could follow appellant until the police could find them both.

It took a few minutes for Mr. Cox to get back into his car and follow appellant, who had driven off the freeway at the next exit ramp and run into a light post on the service road. Appellant's engine was still running and the wheels were still spinning, but his SUV was "impaled" on the pole which was pushed over at a 45 degree angle. Mr. Cox once again parked his car and walked up to appellant's car. Appellant was "not really alert." He didn't seem to know that the OnStar person was trying to talk to him.

When a police officer arrived, appellant came up and shook the officer's hand and then fell over into the officer's arms. His speech was very slurred, he had a hard time keeping his eyes open, and he acted "sluggish." After MedStar personnel checked appellant at the scene to make sure that he had no serious injuries, the officer transported him to the hospital where appellant agreed to a blood test. The results of that test showed that appellant tested positive (at therapeutic levels)2 for both tramadol (Ultram), a painkiller, and zolpidem (Ambien), a sleeping pill. An emergency-room nurse testified that Ambien induces sleep within 15 to 30 minutes3 and that Ultram is an opiate painkiller that could cause drowsiness as well as give pain relief. When shown both the Ambien and Ultram pills, the nurse agreed that they are the same shape and same white color; the only difference is that one is slightly larger than the other.

Appellant testified that he is thirty-four years old, married, with one ten-year-old daughter. More than ten years earlier, appellant had been injured at an auto auction by a Jeep that had gotten loose and, while traveling at about 35-45 m.p.h., run into nineteen people, including appellant. He had to have back surgery and still suffers from chronic back pain. He has taken a wide variety of prescription medicine to try to relieve the pain. On April 15th, appellant went to an urgent care clinic and was prescribed Ambien, Soma, Celebrex, and Ultram for his pain and to help him sleep. Appellant had never had Ambien before, but he had been taking Ultram for over seven years.

On Saturday morning, April 19th, appellant was driving from his home in Aledo to his job as a sales manager at a Carrollton car dealership. Saturday is his busiest day. He remembered getting up and stopping at a gas station near his home, but that is all that he remembered of that day. He did not remember the two accidents,4 talking with Mr. Cox or police officers, or being taken to the hospital. The first thing he remembered was waking up in jail. He did not remember taking his medicines Saturday morning, but "obviously" he did; he is "a creature of habit" and knew that he could not make the hour-long drive to work without his Ultram and Soma pills. His wife always puts his pills out for him. Appellant said that he did not intentionally take an Ambien pill that morning; he had never taken Ambien before April 15th and would not take one unless he was going to bed immediately afterward.

Appellant's wife testified that she did remember putting out appellant's Ambien and Ultram pills the night before. She felt responsible because the Ambien and Ultram look so much alike and she did not separate the Ambien (to be taken later that night) far enough from the Ultram on the microwave. She saw that the Ambien pill was still on the microwave the next morning, but she didn't think to take it away.

At the charge conference, appellant asked for three different jury instructions, one of which was on involuntary intoxication.5 The State argued that appellant was not entitled to such an instruction because appellant admitted that he took the pill and it was an Ambien pill; therefore he "voluntarily took the intoxicant.... The fact is he took the pill. He has a responsibility to know what he's actually ingesting in his system." The trial judge denied all three of appellant's requested instructions, including that of "involuntary intoxication," noting that it appeared to be a comment on the evidence when it told the jury "that in order to satisfy number one, you're hereby instructed that these things are true."6

The State focused its argument on how the law does not require a DWI defendant to know that he has taken an intoxicating substance. "And why did the law makers choose to keep the law the same for whatever circumstance? Because the result is the same. The result is just as dangerous whether somebody knew or didn't know what the consequences might be of taking a certain drug."

The defense argued that sometimes the law just doesn't make sense: "Sometimes when the legislature makes all of this law and the courts interpret the laws, sometimes common sense is thrown out the window.... Do you think for a second that he took that [Ambien] intentionally?"

The jury sent out a note asking, "What does the term `introduction' mean?" The trial judge told the jury that the term did not have any special meaning, and, shortly thereafter, the jury returned a guilty verdict.

On appeal, appellant argued that the trial judge erred in failing to give the jury his requested instruction #2 on a voluntary act or his requested instruction #3 on "involuntary intoxication by prescription medicine." As the court of appeals repeatedly noted, appellant did not complain about the trial court's failure to give the jury his requested instruction #1, on the affirmative defense of involuntary intoxication.7 In its memorandum opinion on remand, the court of appeals held that appellant "was entitled to an instruction about the voluntariness of his actions and that failure to include an instruction constituted some harm" so it sustained appellant's sole point of error.8

Voluntary intoxication is virtually never a defense to crime. The law has proved unwilling to permit a condition that people, at least historically, consider a crime, a sin, or at best a personal weakness, to serve as an excuse for criminal conduct. Indeed, permitting a defense of voluntary intoxication would only increase its prevalence. "Drunkenness will be presumed to be voluntary unless some special circumstance is established to remove it from that category."

Involuntary intoxication has always been the one recognized exception to this general rule. The early common-law doctrine of "involuntary intoxication" relieved a person of criminal responsibility if, because of involuntary intoxication, he was temporarily rendered legally insane at the time he committed the offense. Involuntary intoxication is sometimes described as "innocent intoxication" because the defendant is without moral fault or blameworthiness for his condition. The law does not criminalize conduct that is entirely innocent and could not be prevented or deterred.

Texas courts recognize that involuntary intoxication is an affirmative defense when:

• the accused has accused has exercised no independent judgment or volition in taking the intoxicant; and exercised no independent judgment or volition in taking the intoxicant; and

• as a result of his intoxication he did not know that his conduct was wrong[.]

This Court long ago defined the test for involuntariness as the "absence of an exercise of independent judgment and volition on the part of the accused in taking the intoxicant." This Court has never explained precisely what it meant by that definition, but American courts have generally held that a person is involuntarily intoxicated when he has become intoxicated through one of four ways: (1) the fault of another, (2) by his own accident, inadvertence, or mistake, (3) pathological intoxication based on a physiological or psychological condition beyond his control, or (4) unexpected intoxication caused by a medically prescribed drug.

The first mode, intoxication caused by the fault of another, was the earliest common-law "involuntary intoxication" defense. Today, courts uniformly recognize that intoxication caused by another's force, duress, or fraud, without any fault on the part of the accused, is involuntary. Texas courts recognize this fraud or coercion prong of involuntary intoxication. For example, in Torres v. State, some evidence indicated that the male robber had given his female cohort a drink containing water, Alka-Seltzer, and some Thorazine tablets. The female robber appeared drugged at the time she assisted her male companion in robbing the homeowner victim. We reversed the female's conviction because the trial judge refused to give an instruction on involuntary intoxication as an affirmative defense. Under the second prong, intoxication is involuntary if the defendant voluntarily took the substance but was unaware of its intoxicating nature. Typically this prong requires that the defendant's mistake reaches some threshold of reasonableness before the defense may be asserted at trial. Texas courts have recognized this "unwitting" prong of involuntary intoxication.

Under the third prong, "pathological intoxication" may occur when a defendant unknowingly suffers from a physiological or psychological condition that renders him abnormally susceptible to a legal intoxicant. For example, a person who takes a first sip of whiskey and has a severe allergic reaction to the alcohol that includes amnesia or other mental derangement would qualify. No Texas courts have acknowledged this form of an involuntary-intoxication defense, and most other state courts are reticent to do so.

Fourth and finally, courts have found the defense of involuntary intoxication applicable when, at the time of the offense, a defendant was voluntarily taking prescription medicine Without any awareness that it might have an intoxicating effect. t[exas courts have addressed this fourth prong and stated that "[i]ntoxication by prescription medication occurs only `if the individual had no knowledge of possible intoxicating side effects of the drug, since independent judgment is exercised in taking the drug as medicine, not as an intoxicant.'"

The treatises and cases uniformly hold that proof of involuntary intoxication is not, by itself, sufficient to raise the affirmative defense. The defendant must also offer evidence that the intoxication has so affected the capacity of his mind and so deranged his rational thinking at the moment that he is unable "to know what he is doing and that it is wrong."

The involuntary intoxication defense may be applicable in a driving while intoxicated prosecution. For example, in Commonwealth v. Wallace, the evidence showed that the defenant took a Librium pill as prescribed and crashed his car. He was charged with DWI. At trial, the judge prevented the defendant from offering evidence that he had no knowledge of the effects of Librium and that he had not received warnings about using it before driving. The Massachusetts appeals court held that the law should recognize a defense of unwitting intoxication, so that "perfectly innocent and well-intentioned[,] careful persons" would not be subjected to criminal penalties "under circumstances which ... would not subject [them] to a liability for damages in a civil proceeding." After all, a person cannot be civilly liable for causing a car accident if he did not act negligently. Therefore, the trial judge erred in preventing the defendant from introducing evidence that he had no advance knowledge or warning that the medicine was an intoxicant. But the Massachusetts court added an important caveat:

We do not imply that a jury could not in some instances find that a defendant had information sufficient to place on him a duty of inquiring of his doctor as to the possible effects of a prescription drug. In such circumstances, a conviction [for DWI] would be proper if it is found that the defendant was negligent in not asking, and hence not knowing, of such possible effects on his driving.

In other words, the Massachusetts court restricted the defense of unwitting involuntary intoxication to those defendants who acted reasonably — non-negligently — concerning the intoxicating nature of the substance they ingested.

Other courts have also held that involuntary intoxication is a defense to DWI. Indeed, one of the seminal cases discussed by professors Perkins and Boyce is a 1937 New York case holding that the DWI defendant was entitled to an acquittal when the undisputed evidence showed that he had "inadvertently" overdosed on his doctor-prescribed medicine. However, an important limitation on the "involuntary intoxication" defense in DWI cases is that if the defendant, despite his intoxication, was or became aware that he was driving while intoxicated, he cannot claim the defense if he continues to drive. As Professors Perkins and Boyce explain, if the defendant was still sufficiently in possession of his faculties to know what he was doing, and to understand the character of his acts, and with such knowledge and understanding should voluntarily go into a public place or drive a motor vehicle on a public highway, the involuntariness of the intoxication would not excuse him because the prohibited act itself was done voluntarily.

We have never discussed the applicability of the affirmative defense of involuntary intoxication to DWI prosecutions, although numerous Texas courts of appeals decisions have held that this defense does not apply to DWI cases. Most of those decisions are unpublished, but they all rely on Aliff v. State. In that DWI case, the El Paso Court of Appeals held that the defendant failed to offer any evidence that he took his prescription medicines for mental illness and back problems without knowledge of their intoxicating effect. Therefore, he was not entitled to any instruction on involuntary intoxication. The court then cited to Torres for the proposition that "involuntary intoxication is a defense to criminal culpability." From that sentence, the El Paso court reasoned that, because proof of a culpable mental state is not required in prosecutions for intoxication offenses, including driving while intoxicated, the defense did not apply to DWI. But, in Torres, we said that involuntary intoxication is a defense to "criminal culpability" in the sense of "criminal responsibility," not a culpable mental state. Involuntary intoxication is a "confession and avoidance" defense and excuses criminal conduct just as insanity, duress, and entrapment excuse criminal conduct. There is nothing in the common law, our law, or the laws of other states that suggest that the affirmative defense of involuntary intoxication does not or should not apply to DWI prosecutions. To punish a person who has acted innocently, without negligence, and while taking all reasonable precautions "would restrain neither him nor any other man from doing a wrong in the future; it could inflict on him a grievous injustice, would shock the moral sense of the community, would harden men's hearts, and promote vice instead of virtue." It also promotes disrespect for the law.

You Decide 12.3: Whitner v. State, 492 S.E.2d 777 (S.C. 1996).

On April 20, 1992, Cornelia Whitner (Whitner) pled guilty to criminal child neglect, S.C. Code Ann. § 20-7-50 (1985), for causing her baby to be born with cocaine metabolites in its system by reason of Whitner's ingestion of crack cocaine during the third trimester of her pregnancy. The circuit court judge sentenced Whitner to eight years in prison. Whitner did not appeal her conviction.

Thereafter, Whitner filed a petition for Post Conviction Relief (PCR), pleading the circuit court's lack of subject matter jurisdiction to accept her guilty plea as well as ineffective assistance of counsel. Her claim of ineffective assistance of counsel was based upon her lawyer's failure to advise her the statute under which she was being prosecuted might not apply to prenatal drug use. The petition was granted on both grounds. The State appeals.

The State first argues the PCR court erred in finding the sentencing circuit court lacked subject matter jurisdiction to accept Whitner's guilty plea. We agree.

Under South Carolina law, a circuit court lacks subject matter jurisdiction to accept a guilty plea to a nonexistent offense. For the sentencing court to have had subject matter jurisdiction to accept Whitner's plea, criminal child neglect under section 20-7-50 would have to include an expectant mother's use of crack cocaine after the fetus is viable.

S.C. Code Ann. § 20-7-50 (1985) provides:

Any person having the legal custody of any child or helpless person, who shall, without lawful excuse, refuse or neglect to provide, as defined in § 20-7-490, the proper care and attention for such child or helpless person, so that the life, health or comfort of such child or helpless person is endangered or is likely to be endangered, shall be guilty of a misdemeanor and shall be punished within the discretion of the circuit court.

The State contends this section encompasses maternal acts endangering or likely to endanger the life, comfort, or health of a viable fetus.

Under the Children's Code, "child" means a "person under the age of eighteen." S.C. Code Ann. § 20-7-30(1) (1985). The question for this Court, therefore, is whether a viable fetus is a "person" for purposes of the Children's Code.

In interpreting a statute, this Court's primary function is to ascertain the intent of the legislature. Of course, where a statute is complete, plain, and unambiguous, legislative intent must be determined from the language of the statute itself.. We should consider, however, not merely the language of the particular clause being construed, but the word and its meaning in conjunction with the purpose of the whole statute and the policy of the law. Finally, there is a basic presumption that the legislature has knowledge of previous legislation as well as of judicial decisions construing that legislation when later statutes are enacted concerning related subjects.

South Carolina law has long recognized that viable fetuses are persons holding certain legal rights and privileges. … Similarly, we do not see any rational basis for finding a viable fetus is not a "person" in the present context. Indeed, It would be absurd to recognize the viable fetus as a person for purposes of homicide laws and wrongful death statutes but not for purposes of statutes proscribing child abuse. Our holding in Hall that a viable fetus is a person rested primarily on the plain meaning of the word "person" in light of existing medical knowledge concerning fetal development. We do not believe that the plain and ordinary meaning of the word "person" has changed in any way that would now deny viable fetuses status as persons.

The policies enunciated in the Children's Code also support our plain meaning reading of "person." S.C. Code Ann. § 20-7-20(C) (1985), which describes South Carolina's policy concerning children, expressly states: "It shall be the policy of this State to concentrate on the prevention of children's problems as the most important strategy which can be planned and implemented on behalf of children and their families." The abuse or neglect of a child at any time during childhood can exact a profound toll on the child herself as well as on society as a whole. However, the consequences of abuse or neglect which takes place after birth often pale in comparison to those resulting from abuse suffered by the viable fetus before birth. This policy of prevention supports a reading of the word "person" to include viable fetuses. Furthermore, the scope of the Children's Code is quite broad. It applies "to all children who have need of services." When coupled with the comprehensive remedial purposes of the Code, this language supports the inference that the legislature intended to include viable fetuses within the scope of the Code's protection.

Whitner advances several arguments against an interpretation of "person" as used in the Children's Code to include viable fetuses. We shall address each of Whitner's major arguments in turn.

Whitner's first argument concerns the number of bills introduced in the South Carolina General Assembly in the past five years addressing substance abuse by pregnant women. Some of these bills would have criminalized substance abuse by pregnant women; others would have addressed the issue through mandatory reporting, treatment, or intervention by social service agencies. Whitner suggests that the introduction of several bills touching the specific issue at hand evinces a belief by legislators that prior legislation had not addressed the issue. Whitner argues the introduction of the bills proves that section 20-7-50 was not intended to encompass abuse or neglect of a viable fetus.

We disagree with Whitner's conclusion about the significance of the proposed legislation. Generally, the legislature's subsequent acts "cast no light on the intent of the legislature which enacted the statute being construed." Rather, this Court will look first to the language of the statute to discern legislative intent, because the language itself is the best guide to legislative intent.. Here, we see no reason to look beyond the statutory language. Additionally, our existing case law strongly supports [*10] our conclusion about the meaning of the statute's language.

Whitner also argues an interpretation of the statute that includes viable fetuses would lead to absurd results obviously not intended by the legislature. Specifically, she claims if we interpret "child" to include viable fetuses, every action by a pregnant woman that endangers or is likely to endanger a fetus, whether otherwise legal or illegal, would constitute unlawful neglect under the statute. For example, a woman might be prosecuted under section 20-7-50 for smoking or drinking during pregnancy. Whitner asserts these "absurd" results could not have been intended by the legislature and, therefore, the statute should not be construed to include viable fetuses.

We disagree for a number of reasons. First, the same arguments against the statute can be made whether or not the child has been born. After the birth of a child, a parent can be prosecuted under section 20-7-50 for an action that is likely to endanger the child without regard to whether the action is illegal in itself. For example, a parent who drinks excessively could, under certain circumstances, be guilty of child neglect or endangerment even though the underlying act -- consuming alcoholic beverages -- is itself legal. Obviously, the legislature did not think it "absurd" to allow prosecution of parents for such otherwise legal acts when the acts actually or potentially endanger the "life, health or comfort" of the parents born children. We see no reason such a result should be rendered absurd by the mere fact the child at issue is a viable fetus.

Moreover, we need not address this potential parade of horribles advanced by Whitner. In this case, which is the only case we are called upon to decide here, certain facts are clear. Whitner admits to having ingested crack cocaine during the third trimester of her pregnancy, which caused her child to be born with cocaine in its system. Although the precise effects of maternal crack use during pregnancy are somewhat unclear, it is well documented and within the realm of public knowledge that such use can cause serious harm to the viable unborn child. There can be no question here Whitner endangered the life, health, and comfort of her child. We need not decide any cases other than the one before us.

We are well aware of the many decisions from other states' courts throughout the country holding maternal conduct before the birth of the child does not give rise to criminal prosecution under state child abuse/endangerment or ] drug distribution statutes. See, e.g., Johnson v. State, 602 So. 2d 1288 (Fla. 1992); Commonwealth v. Welch, 864 S.W.2d 280 (Ky. 1993); State v. Gray, 62 Ohio St. 3d 514, 584 N.E.2d 710 (Ohio 1992); Reyes v. Superior Court, 75 Cal. App. 3d 214, 141 Cal. Rptr. 912 (1977); State v. Carter, 602 So. 2d 995 (Fla. Ct. App. 1992); State v. Gethers, 585 So. 2d 1140 (Fla. Ct. App. 1991); State v. Luster, 204 Ga. App. 156, 419 S.E.2d 32 (Ga. Ct. App. 1992), cert. denied (Ga. 1992); Commonwealth v. Pellegrini, No. 87970, slip op. (Mass. Super. Ct. Oct. 15, 1990); People v. Hardy, 188 Mich. App. 305, 469 N.W.2d 50 (Mich. Ct. App.), app. denied, 437 Mich. 1046 (Mich. 1991); Commonwealth v. Kemp, 434 Pa. Super. 719, 643 A.2d 705 (Pa. Super. Ct. 1994). Many of these cases were prosecuted under statutes forbidding delivery or distribution of illicit substances and depended on statutory construction of the terms "delivery" and "distribution." See, e.g., Johnson v. State, supra; State v. Luster, supra; People v. Hardy, supra. Obviously, such cases are inapplicable to the present situation. The cases concerning child endangerment statutes or construing the terms "child" and "person" are also distinguishable, because the states in which these cases were decided have entirely different bodies of case law from South Carolina.

Massachusetts, however, has a body of case law substantially similar to South Carolina's, yet a Massachusetts trial court has held that a mother pregnant with a viable fetus is not criminally liable for transmission of cocaine to the fetus. See Commonwealth v. Pellegrini, No. 87970, slip op. (Mass. Super. Ct. Oct. 15, 1990). Specifically, Massachusetts law allows wrongful death actions on behalf of viable fetuses injured in utero who are not subsequently born alive. Similarly, Massachusetts law permits homicide prosecutions of third parties who kill viable fetuses. See Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (Mass. 1984)(ruling a viable fetus is a person for purposes of vehicular homicide statute); Commonwealth v. Lawrence, 404 Mass. 378, 536 N.E.2d 571 (Mass. 1989)(viable fetus is a person for purposes of common law crime of murder). Because of the similarity of the case law in Massachusetts to ours, the Pellegrini decision merits examination.

In Pellegrini, the Massachusetts Superior Court found that state's distribution statute does not apply to the distribution of an illegal substance to a viable fetus. The statute at issue forbade distribution of cocaine to persons under the age of eighteen. Rather than construing the word "distribution," however, the superior court found that a viable fetus is not a "person under the age of eighteen" within the meaning of the statute.

Whitner argues that prosecuting her for using crack cocaine after her fetus attains viability unconstitutionally burdens her right of privacy, or, more specifically, her right to carry her pregnancy to term. We disagree.

First, the State's interest in protecting the life and health of the viable fetus is not merely legitimate. It is compelling. …Even more importantly, however, we do not think any fundamental right of Whitner's -- or any right at all, for that matter -- is Implicated under the present scenario. It strains belief for Whitner to argue that using crack cocaine during pregnancy is encompassed within the constitutionally recognized right of privacy. Use of crack cocaine is illegal, period. No one here argues that laws criminalizing the use of crack cocaine are themselves unconstitutional. If the State wishes to impose additional criminal penalties on pregnant women who engage in this already illegal conduct because of the effect the conduct has on the viable fetus, it may do so. We do not see how the fact of pregnancy elevates the use of crack cocaine to the lofty status of a fundamental right.

Moreover, as a practical matter, we do not see how our interpretation of section 20-7-50 imposes a burden on Whitner's right to carry her child to term.....Whitner enjoyed the same freedom to use cocaine that she enjoyed earlier in and predating her pregnancy -- none whatsoever. Simply put, South Carolina's child abuse and endangerment statute as applied to this case does not restrict Whitner's freedom in any way that it was not already restricted. The State's imposition of an additional penalty when a pregnant woman with a viable fetus engages in the already proscribed behavior does not burden a woman's right to carry her pregnancy to term; rather, the additional penalty simply recognizes that a third party (the viable fetus or newborn child) is harmed by the behavior.

Moore, J. dissenting

In my view, the repeated failure of the legislature to pass proposed bills addressing the problem of drug use during pregnancy is evidence the child abuse and neglect statute is not intended to apply in this instance. This Court should not invade what is clearly the sole province of the legislative branch. At the very least, the legislature's failed attempts to enact a statute regulating a pregnant woman's conduct indicate the complexity of this issue. While the majority opinion is perhaps an argument for what the law should be, it is for the General Assembly, and not this Court, to make that determination by means of a clearly drawn statute. With today's decision, the majority not only ignores legislative intent but embarks on a course of judicial activism rejected by every other court to address the issue.

The majority argues for equal treatment of viable fetuses and children, yet its construction of the statute results in even greater inequities. If the statute applies only when a fetus is "viable," a pregnant woman can use cocaine for the first twenty-four weeks 2 of her pregnancy, the most dangerous period for the fetus, and be immune from prosecution under the statute so long as she quits drug use before the fetus becomes viable. Further, a pregnant woman now faces up to ten years in prison for ingesting drugs during pregnancy but can have an illegal abortion and receive only a two-year sentence for killing her viable fetus.

CHAPTER THIRTEEN

You Decide 13.1: STATE V. SAAD, 429 So.2d 757 (Fla. App. 1983).

Saad attempted to deliver $ 1,000 each to two police officers to secure the return of $ 20,700 in cash which had been taken from him in the course of an arrest. The trial judge granted a motion to dismiss the resulting bribery charges, on the ground that the initial seizure had been unlawful and that he was therefore entitled to the money in any case. We summarily reverse. Even if arguendo the premise of an illegal taking were correct, it is obvious, hornbook law, that one is guilty of bribery if he corruptly pays or accepts unlawful compensation even for doing an act that the bribee is legally bound to accomplish.

The corruption aimed at is not simply the doing of things which may be improper in themselves, but even the doing of proper things as the result of an improper agreement. The statute would be violated as much by an agreement for compensation from private parties to take special pains to decide, even properly a matter coming before the officer, as it would be an agreement to decide it improperly. In other words, the statute reaches out as much against the influencing of the officer's judgment or decision as to does against the improper result of such influence. The offense is so subtle in its fruits that the law endeavors to lay the ax at its very roots. In our system at least, the end does not justify the means. The effectuation of Saad's intent to get his money by short-circuiting and subverting that system may, and must, be held accountable to the criminal law.

You Decide 13.2: United States v. Williams, 698 F.3d 372 (7th Cir. 2012).

Corvet Williams and Brian Austin were tried together and convicted of a bank robbery with the use of a firearm. They were convicted and sentenced to 684 months in prison.

Williams contends …that the government impermissibly bolstered its case by calling his original lawyer as a witness. The lawyer testified that Williams had mailed him an envelope marked "legal mail" (so that it would not be opened by the jail) that contained a sealed letter addressed to a cousin of Williams and a note asking the lawyer to forward the letter to Williams's family to give to the cousin. The lawyer was suspicious and read the letter. It instructed the cousin to provide an alibi for Williams by testifying that Williams had been involved in a marijuana deal on the day of the robbery. Realizing that Williams was trying to obstruct justice by asking the cousin to provide him with a false alibi, the lawyer did not forward the letter. Instead, with the judge's permission the lawyer withdrew as Williams's counsel, turned the letter over to the government, and agreed at the government's request to testify at Williams's trial. He testified that the letter was a "blatant attempt to get me involved in smuggling something out of the jail that in turn would be a potential instrument for obstruction." Williams, who like Austin had decided to testify, admitted on the stand that his aim in writing the letter had indeed been to induce his cousin to lie for him.

He argues that his lawyer did a terrible thing in turning against him as he did; indeed that the lawyer violated the Sixth Amendment right to effective assistance of counsel; and that the impact on the jury of the lawyer's testimony must have been devastating. These are separate points and we shall discuss them separately.

There was no violation of the lawyer-client privilege. In asking the lawyer to forward the letter Williams was not soliciting legal advice or providing information that the lawyer might use in crafting Williams's defense. "When information is transmitted to an attorney with the intent that the information will be transmitted to a third party..., such information is not confidential." For "an individual cannot purchase anonymity by hiring a lawyer to deliver his money or his messages."

The ethical rule applicable when the lawyer turned against Williams was the rule of the Northern District of Illinois that permitted a lawyer to "reveal . . . the intention of a client to commit a crime," although it did not require him to do so unless "it appear[ed] necessary to prevent the client from committing an act that would result in death or serious bodily harm." Oddly, the parties do not cite that rule, but instead the Northern District's current rule, adopted in 2011, which, we are surprised to discover, is less protective of public safety. It permits a lawyer to reveal information relating to the representation of a client only in specified circumstances, such as "to the extent the lawyer reasonably believes [that revelation is] necessary (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; [or] (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services." ABA Model Rule of Professional Conduct 1.6(b)(1)-(3). The new Northern District rule adopts the ABA Model Rules of Professional Conduct. N.D. Ill. L.R. 83.50. But the current rule is not applicable to this case. The old Northern District rule—the rule applicable to this case—placed no limitations on a lawyer's reporting the intention of his client to commit a crime.

And more than an intention was involved. Williams had already committed the crime of attempting to suborn perjury by preparing the letter to his cousin and asking the lawyer to forward it, and he intended the further crime of actually suborning perjury. An unfulfilled intention to commit or suborn (that is, get someone else to commit) perjury is not a crime, but the intention plus a significant step toward completion, which Williams took, is a crime. And there is more than just suborning perjury in this case, because the cousin would have committed perjury had he agreed to Williams's request, as would Williams had he testified to the false alibi. So we're really talking about three crimes, one completed, two intended: suborning perjury; perjury by Williams; and perjury by the cousin. (The lawyer would have suborned perjury too had he delivered the note to the cousin after reading it, but that was never in the cards.)

The literature on the ethical duties of lawyers counsels that a lawyer should attempt to dissuade his client from illegal conduct before disclosing his client's intentions to the court or to law enforcement authorities. But the literature phrases this as a recommendation rather than as a flat command, frequently hedging it with qualifications such as "ordinarily" and "practicable." This makes sense in the usual case; the harm to the client's interests and to the attorney-client relationship from disclosure is great, and the benefit of disclosure in preventing criminal activity is usually small when the crime is perjury since the lawyer can refuse to introduce the perjured testimony. But this is not the usual case. Had Williams's lawyer merely refused to forward the letter, Williams might have found a different means of conveying his unlawful request to his family (maybe orally in jail to a visiting family)—perhaps with instructions to find someone other than the cousin to be the false alibi witness, someone the lawyer had never heard of and therefore would have no basis for refusing to call as a witness. Facing a possible sentence of more than 50 years for the bank robberies and having already attempted to suborn perjury, Williams was unlikely to hearken to an ethics lecture by his lawyer.

This was not a case in which a client tells the lawyer that he would like to give testimony that the lawyer knows is a lie, and the lawyer tells him he must not do so and is confident the client will obey. Williams took a substantial step toward procuring a false witness and having embarked on that course had other means of reaching his destination even if the lawyer prevented the cousin from testifying. In such a case a lawyer is allowed to exercise discretion concerning whether to withdraw from representing the defendant and report the defendant's crime of attempting to suborn perjury.

More important than what we think is that allowing the exercise of such discretion is consistent with the Northern District's (old) rule of lawyer conduct, the rule applicable to Williams's lawyer, which authorized the lawyer to "reveal...the intention of a client to commit a crime." Even ABA Model Rule of Professional Conduct 3.3(b), which the Northern District has now adopted, states, albeit in tension with the other one of the model rules that we quoted, that "a lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal." And in Nix v. Whiteside, 475 U.S. 157, 169, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986) , the Supreme Court said that "it is universally agreed that at a minimum the attorney's first duty when confronted with a proposal for perjurious testimony is to attempt to dissuade the client from the unlawful course of conduct." In other words, the lawyer's minimum duty to the court—to the law—is to try to dissuade his client from committing perjury. The maximum would be to withdraw and testify against him. And the Court in Nix (like the other authorities on professional ethics on which William does or could rely) was dealing with a case in which a crime (perjury) had merely been proposed, rather than, as in this case, with a crime (attempted subornation of perjury) that had already been committed.

Lawyers enjoy a broad discretion in responding to litigation misconduct by their clients, and in the unusual circumstances of this case we do not think the lawyer acted unethically.

In this case, the lawyer's testifying to his former client's effort to enlist him in suborning perjury could not have violated Williams's constitutional right to effective assistance of counsel. The lawyer was no longer Williams's counsel when he testified; he had withdrawn as counsel and his right to do so is not questioned. Williams does not accuse the lawyer who represented him at trial (his original lawyer having withdrawn by then) of having rendered ineffective assistance of counsel. We can't find any authority for holding that a lawyer's actions after withdrawing from a litigation can give rise to a claim of ineffective assistance by a party he formerly represented—especially since, as just noted, a lawyer may be ordered to reveal information relating to the representation of a client by a court. If we ordered a new trial, the government could subpoena the lawyer to testify again.

And if all this is wrong and there was error in allowing the lawyer to testify, it was harmless because the other evidence against Williams was overwhelming. An error in a criminal case in which the defendant is convicted by a jury is harmless if without the error no reasonable juror would have voted to acquit. This is such a case.

It's true that the prosecutor said that the lawyer's testimony was "essential" to its case. It wasn't; it was an example of conduct by prosecutors that we have criticized in United States v. Ford, 683 F.3d 761, 767-68 (7th Cir. 2012): prosecutors tend to pile on evidence of dubious admissibility or probative value even when the probative admissible evidence is overwhelming because they want to guarantee a conviction and they know that even though no reasonable jury could acquit in the face of the probative admissible evidence, not all juries are reasonable.

Which means that the government should not have called the defendant's former lawyer as a witness against his former client. The fact that it was his former lawyer testifying against him was likely to have a greater impact on the jury than the contents of his testimony warranted, since the contents were as we said not necessarily inconsistent with innocence. The prejudice was great in relation to the limited probative value, so the judge should have excluded the testimony under Rule 401. But a harmless error is not a permissible basis for reversing a conviction (which is why prosecutors pile on!).

Hamilton, Circuit Judge

I respectfully dissent from the affirmance of Williams's conviction. For our adversarial system of criminal justice to function, a defendant must have one person who is zealously acting in his interests — his defense lawyer. Criminal defense lawyers have many duties. Those duties include trying to save their clients from their own folly, especially as they face an intimidating and even frightening criminal justice system. If the lawyer's first response to an idea like Williams's false alibi can be to disclose that information to the court and prosecutor, we will erode the confidence that accused clients should have in their lawyers. In the long run, we will undermine the ability of those lawyers to represent their clients effectively.

The relevant professional standards are clear. If a lawyer is to disclose the client's confidential affairs to prevent a crime or prevent other serious harm, the disclosure must be a matter of necessity. Disclosure must be the last resort, not the first response. Unless an emergency makes persuasion impractical, the lawyer first owes the client the opportunity to change his course based on the lawyer's professional advice. And if the lawyer is unable to persuade the client to change course, the lawyer has a duty to warn the client that the lawyer will need to take remedial action, up to and including disclosing the circumstances to the court, and to withdraw from the representation if possible.2

At a minimum, then, in this case Ryan should have told Williams that he had read the letter, advised against perjury, warned Williams that he would disclose the information to the court if necessary, and asked Williams about his intentions. Only if he was not satisfied with Williams's answer should he have asked the court for leave to withdraw. If he provided the court an explanation at all, it should have been filed under seal so the prosecutor would not see it. The duties of loyalty and confidence required at least this degree of effort to protect his client, even from his own criminal stupidity.

Ryan's decision to go straight to the court and prosecutor, without talking with his client first, ran counter to all the sources on standards of professional conduct. In that respect, this case is similar to Nix v. Whiteside, where "virtually all of the sources speak with one voice." Contrary to professional standards, Ryan transformed himself from the defendant's advocate into a prime witness against him. The lawyer's breach of duties of confidentiality and loyalty was so clear and so basic as to fall below the constitutional standard for effective assistance of counsel. As best I can tell, the majority's acceptance of this lawyer's choice to skip the step of talking to his client, when that step was quite practical, is simply unprecedented.

We should not excuse this failure to consult with or warn the client — and certainly not based on speculation that doing so would have been futile. There was ample time to talk with the client. Ryan could not have known whether Williams would heed advice and a warning that he never gave. The requirement that lawyers attempt to dissuade their clients from illegal acts is based not on optimism about their chances of success, but on the understanding that disclosure must be the last resort for a loyal, confidential advocate whose duties include trying to save the client from his own folly. The Northern District's committee comment to Local Rule 83.51.6 expressed this long-understood preference for lawyers to adopt the role of confidant before the role of informant: "[T]o the extent a lawyer is required or permitted to disclose a client's purposes, the client will be inhibited from revealing facts which would enable the lawyer to counsel against a wrongful course of action. The public is better protected if full and open communication by the client is encouraged than if it is inhibited."

Defendant Williams presents one of those rare cases where ineffective assistance can be decided from the contents of the record on direct appeal. I would remand for a new trial of Williams, this time without any mention of lawyer Ryan or the letter as part of the prosecution's case-in-chief.

You Decide 13.3: United States v. Nickels, 502 F.2d 1173 (7th Cir. 1974).

In 1964, defendant was assigned to the 18th Chicago Police District Vice Squad to conduct wire surveillance. He remained there until the spring of 1966. At the trial, a former Chicago policeman, Joseph Dawson, and suspended policeman John Cello testified that defendant was given a share of monthly payoffs given to Dawson and Cello by gambling interests and tavern keepers. The division of the payoffs took place in secrecy in defendant's presence at the Olympic Hotel in Chicago on several occasions. The 'package' was divided among the sixteen members of the Vice Squad. Martin B. Brody keeper of the Olympic Hotel, testified that he gave a police officer $75 in the defendant's presence 'to keep the vice squad away.' He also testified that he gave defendant $75 on another occasion.

In this connection, defendant first asserts that his negative answer to the question whether he received any money while in the 18th District from any bar owner, tavern owners or businessmen who ran an establishment that sold alcoholic beverages was literally true. We disagree. During the division of payoffs, Cello explained to Dawson and defendant which taverns had contributed payoffs to Cello. The 'package' was then divided among these three and thirteen other policemen. Since Cello had testified that the payoffs he contributed to the pot came from tavern owners, the Government proved that defendant's answer was false.

Defendant next asserts that his answer 'No, sir, not for my duties' to the question whether he received any money from any persons while on official duty as a Chicago policeman was also literally true. But his initial response 'No, sir' was directly responsive and false, so that the non-responsive attempted hedge which followed was not effective. Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568, is of no avail because Bronston replied only to a question which was not asked. Every portion of Bronston's answer was both non-responsive and literally true, whereas the only responsive portion of this defendant's answer was false. Of course a witness may give an answer and then qualify it, but the qualification must also be responsive or it is irrelevant.

You Decide 13.3: United States v. Jones, 569 F.2d 499 (9th Cir. 1978).

After a conviction for bank robbery and commitment to prison, appellant was released to a contract "half-way house" in Seattle and was instructed in its regulations. He was restricted during furloughs to the limits of King County, Washington. Jones received a weekend pass which required that he return by Sunday at midnight. He took a bus to Vancouver,Washington, 175 miles from Seattle and committed a burglary on Saturday. He was arrested and detained and did not return to the half-way house and was charged with escape. Was Jones guilty of the federal crime of escape under18 U.S.C. §751?

Following his conviction for bank robbery and incarceration Jones was released to a “half-way house’ in Seattle. A weekend pass for March 4-6, 1977 provided that he return by midnight on March 6 and not be involved in any criminal conduct. He left the county, went by bus to Vancouver, Washington (175 miles from Seattle) to commit a burglary on March 5, was apprehended, gave a false name, and was detained. He did not return on time to the half-way house and was charged with escape. The willful failure of a prisoner to remain within the extended limits of his confinement, or to return within the time prescribed to an institution or facility designated by the Attorney General, shall be deemed an escape from the custody…A federal prisoner participating in a pre-release or half-way house program by designation of the Attorney General commits an escape when he willfully violates the terms of his extended confinement. While this court has not previously addressed the precise situation, other circuits have and we shall follow their lead. In the case before us, Jones left the area to which he had been restricted, traveled across the state to a city on the Oregon border, committed a felony, and failed to return at the designated hour. There is no question that Jones willfully exceeded the limits of his confinement when he left King County. Furthermore, his failure to return on time, although due to his incarceration, was also the result of his willful conduct.

You Decide 13.4: United States v. Ali, __F.Supp.___(2012).

Defendant Ali was charged with one count of conspiracy to provide material support to a designated foreign terrorist organization, and twelve counts of providing material support to a foreign terrorist organization. The Indictment alleged that Defendant Ali and co-defendant Hawo Hassan provided material support to al-Shabaab, a group based in Somalia and designated a foreign terror organization by the U.S. Department of State on February 26, 2008. Given the nature of the charges, and the fact that al-Shabaab is credited with a number of suicide bombings - some involving young men that traveled to Somalia from Minnesota - the case was covered extensively in the press and on the internet.

The nature of the charges - providing material support to a terrorist organization - and the fact that the case had become high profile, raised security concerns for the Court. As a result, additional security measures were put into place. For example, additional court security officers and U.S. Marshals were in the courtroom during all proceedings, and signs were placed in the lobby of the Courthouse detailing court rules as to electronic devices and decorum in the Somali language. Court security officers were also briefed on the procedures to be followed in the event they observed persons violating such court rules.

The Court also reached out to Somali community leaders and elders for assistance in enforcing courtroom decorum, and designated a separate room, outside of the courtroom, to be used for prayer. In addition, specific security procedures were imposed for the reading of the verdict because the Court had concerns as to the public's reaction to the verdict. For example, only a certain number of persons were allowed in the courtroom during the reading of the verdict, and no persons were allowed either in the atrium outside of the courtroom, or in the lobby of the courthouse, when the verdict was to be read.

During a pretrial hearing, court staff observed that Ali did not comply with the "all-rise" call, which requires all persons in the courtroom to rise when court is either called into session or in recess. Upon learning this information, the Court issued an Order, informing all parties to follow the Court's Rules of Decorum, which included complying with the "all-rise" call, and that failure to do so would result in sanctions.

On the first day of trial, Ali did not rise when court was called into session. The Court inquired of Ali whether she was aware of the prior Order requiring her to stand. The Court further informed Ali that her failure to stand would result in her being taken into custody  and that she may face further sanctions. Ali responded that she was aware of the Court's Order, and that she would continue to remain seated despite the imposition of sanctions, as rising violated her religious beliefs. The Court nonetheless gave Ali the opportunity to consider the consequences of her conduct, and a brief recess was called. When the proceedings resumed and the "all-rise" call was given, Ali again refused to stand. On a third occasion, at which time the prospective jurors were present in the courtroom, Ali again failed to stand when court was called into session.

At the lunch recess, the Court again inquired of Ali as to whether she understood the Court's prior Order requiring her to stand. Ali affirmed that she understood the Court's Order, and again stated her refusal to stand was based on her religious beliefs, and that she would continue to refuse to stand. She informed the Court that the decision not to stand was made despite the Court's warning that her pretrial release would be revoked and that she would be held in criminal contempt for her continued failure to rise.

Thereafter, this Court found Ali in criminal contempt of court pursuant to 18 U.S.C. § 401 , revoked her pretrial release, and detained her until further Order of the Court. At the end of the first day of trial, the Court found that Ali failed to rise on ten occasions, and that for each instance of contempt, she was sentenced to five days imprisonment, to be served consecutively.

On the second day of trial, the Court again inquired of Ali as to whether she understood the Court's Order requiring her stand, and the consequences of failing to stand. The Court and Ali then had a brief discussion, on the record, concerning those aspects of Ali's religious beliefs that formed the basis for her decision not to stand when the "all-rise" call was given. After this discussion, Ali informed the Court that she understood the Court's Order, and that after discussing the issue with clerics, she had made the decision that she would remain seated when the "all-rise" call was given. At the end of the second day of trial, the Court found that Ali failed to rise on ten occasions, and sentenced her to five days imprisonment, to be served consecutively, for each occasion she failed to stand.

The next day, Ali requested the opportunity to speak with the Court out of the hearing of the jury. The Court granted the request, and allowed her to approach the bench. During this discussion, which is also a part of the record, Ali informed the Court that based on their exchange the previous day, and the way she was treated by the Court, she had changed her mind and would thereafter respect the Court's Order and stand when the "all-rise" call was given.

Ali appealed the contempt orders issued against her on the bases that her conduct did not constitute misbehavior which obstructed the administration of justice and that the Court erred in not considering whether the requirement to rise furthered a compelling governmental interest that could be accomplished by less restrictive means, pursuant to Religious Freedom Restoration Act (RFRA).

To state a claim under RFRA, a person must show that a governmental policy or action violates her right to exercise religion freely, as such policy or action "substantially burdens h[er] sincerely held religious belief." To substantially burden one's free exercise of religion is to: significantly inhibit or constrain conduct or expression that manifests some central tenet of a person's individual religious beliefs; must meaningfully curtail a person's ability to express adherence to his or her faith or must deny a person reasonable opportunity to engage in those activities that are fundamental to a person's religion.

RFRA also "extends free exercise rights to religious practices that are not compelled by or central to a particular belief system." "Thus, in a RFRA analysis, a rule imposes a substantial burden on the free exercise of religion if it prohibits a practice that is both 'sincerely held' by and 'rooted in [the] religious belief[s]' of the party asserting the claim or defense."

The Eighth Circuit found that the record established that Ali's refusal to stand was rooted in her sincerely held religious beliefs and that the court order substantially burdened the free exercise of her religion. Therefore, once Ali raised her objection, that was rooted in her sincerely held religious beliefs, the Eighth Circuit found that the Order could be enforced only by a demonstration that application of the burden on Ali was the least restrictive means of furthering a compelling government interest. Because this Court did not evaluate whether the rising requirement was the least restrictive means to further a compelling government interest, the case was remanded for such a determination. "In making this evaluation, the district court must reach a balance between maintaining order and avoiding unnecessary and substantial burdens on sincere religious beliefs." The Eighth Circuit further directed.

As we have said when applying RFRA to prisons, "[a]lthough we require[ ] the government to meet a higher burden than the rational relation test applicable in constitutional claim cases, we nevertheless accord[ ] a significant degree of deference to the expertise of prison officials in evaluating whether they [meet] that burden." This deference is necessary because Congress intended the RFRA test to "be adjusted for the different contexts in which free exercise claims arise, the prison context being one with special needs." A courtroom likewise is a special context in which special needs arise, requiring a significant amount of discretion to be vested in the district court. Because a party must challenge a court order under RFRA before violating it to avoid criminal contempt liability, courts will have the opportunity to exercise that discretion so that discipline and decorum in the court will not be compromised. On remand, the district court may exercise this discretion as it evaluates whether the pretrial order was the least restrictive means to further a compelling government interest.

By Order of this Court dated October 3,  2011, the Court explained that the rising requirement "is to mark the beginning and the end of the court sessions, to show respect for the court system, to assist judges in maintaining order, and to remind all that attention should be paid to court proceedings." [] The Court 's finding that the rising requirement is necessary, in part, to maintain order in the court, was based on court decisions issued prior to the enactment of RFRA

In addition, this case was, and continues to be, widely publicized as it involves charges of providing material support to a foreign terrorist organization. Therefore maintenance of order in the courtroom and public safety was of paramount concern to the Court. In addition, the Court was concerned that Ali's refusal to stand could potentially prejudice Ali in the eyes of the jury.

After identifying the compelling government interest behind the rising requirement, the Court must now determine whether enforcing the rising requirement through contempt citations was the least restrictive means available to the Court to maintain order - and thus security - in the courtroom.

Ali asserts that, in and of itself, failure to stand when court is called does not disrupt court proceedings. In Snider, the Fourth Circuit found that the mere failure to rise upon command is not misbehavior within the meaning of 18 U.S.C. § 401and does not constitute criminal contempt of court. While the Fourth Circuit declined to adopt a per se rule that failure to rise will constitute contempt of court, this Court notes that Snider decision does recognize that when failure to rise is intended to turn a trial into a forum or circus for the expression of political or religious belief, such conduct may constitute contempt.

Here, the issue is not Ali's mere failure to stand. Rather, Ali's failure to stand must be evaluated in light of the nature of the charges issued against her and the factual backdrop to such charges - raising funds and other material support for a designated foreign terrorist organization, al-Shabaab. The Court further notes that public sentiment surrounding this case was deeply divided, and the charges evoked strong passions on the part of those who, like Ali, support al-Shabaab, and those who may have been direct or indirect victims of al-Shabaab's terrorist activities. Accordingly, whether requiring Ali to stand to maintain order and to address security and safety concerns, must be evaluated with these considerations in mind. The Court also recognizes that is has a significant amount of discretion, as the courtroom "is a special context in which special needs arise, requiring a significant amount of discretion to be vested in the district court.”

Ali argues that there is no support in the record for the trial court's finding that Ali's refusal to stand obstructed court proceedings - i.e. her failure to rise did not distract others or provoke a reaction from others. Here, Ali's conduct did not materially effect her jury trial, jury selection proceeded without incident, and no remarks were made drawing attention to her failure to rise in front of the jury. Ali asks the Court to follow the Fourth Circuit in Snider, which suggested that if a failure to rise did distract, provoke a reaction or cause a failure of silence, "the fault may better be resolved by compelling silence and attention than by coercing a gesture of respect. What others do may constitute misbehavior on their part, but it does not justify the finding of criminal contempt as to the person who simply refuses to stand and does nothing more."

The government responds, and this Court agrees, that given the purpose of the rising requirement, making an exception for those people who already may be predisposed to question the Court's authority would undermine such purpose and erode the Court's authority and embolden non-risers to further challenge such authority.

In deciding whether a less restrictive means is available, the Eighth Circuit recognized that [i]t would be a herculean burden . . . to refute every conceivable option in order to satisfy the least restrictive means prong of RFRA. Moreover, such an onerous requirement would be irreconcilable with the well-established principle, recognized by the Supreme Court and RFRA's legislative history, that prison administrators must be accorded due deference in creating regulations and policies directed at the maintenance of prison safety and security.

In this case, given the nature of the charges which involved providing support to a terrorist organization, the fact that the case was high profile and that the charges evoked strong passions on the part of Ali's supporters and detractors, it was imperative that the Court enforce the rules of decorum strictly. It was important that the Court, at the outset, make it known that the court rules would be strictly enforced, given the potential for outbursts or even violence. For the record, the Court notes that on most days that trial was in session, the court gallery was full of spectators. If Ali were allowed to sit while court is called, it may have been possible that her many sympathizers would have begun to emulate her in a show of support. In fact, towards the end of the trial, a number of spectators did not rise when the "all-rise" call was given. The Court was also concerned that allowing Ali to show disrespect for the Court by failing to rise would encourage additional signs of disrespect, leading to a loss of control in the courtroom.

The Court thus finds that requiring Ali to stand was the least restrictive means available to further the compelling interests of maintenance of order in the courtroom and public safety. Accordingly, the Court finds that its Order requiring Ali to stand when court is called into session or in recess did not violate Ali's rights under RFRA.

IT IS HEREBY ORDERED that Defendant Ali is held in contempt of court pursuant to 18 U.S.C. § 401 for those occasions in which she failed to rise when court was called into session and in recess on October 3 and 4, 2011, in violation of the Court's Order dated September 30, 2011. … The Defendant's Motion to Set Aside her Contempt Citations [Doc. No. 147] is DISMISSED as moot.

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