Law Cases

Chapter 7

1. State v. Ulvinen (1981)

Helen Ulvinen was convicted of first-degree murder pursuant to Minn. Stat. § 609.05, subd. 1 (1980), which imposes criminal liability on one who "intentionally aids, advises, hires, counsels, or conspires with or otherwise procures" another to commit a crime. The Minnesota Supreme Court reversed.

Carol Hoffman, Helen Ulvinen's daughter-in-law, was murdered late on the evening of August 10, or in the very early morning of August 11 by her husband, David Hoffman. She and David had spent an amicable evening together playing with their children, and when they went to bed David wanted to make love to his wife. When she refused him he lost his temper and began choking her. While he was choking her, he began to believe he was "doing the right thing" and that to get "the evil out of her" he had to dismember her body.

After his wife was dead, David called down to the basement to wake his mother, asking her to come upstairs to sit on the living room couch. From there she would be able to see the kitchen, bathroom, and bedroom doors and could stop the older child if she awoke and tried to use the bathroom.

Mrs. Ulvinen didn't respond at first but after being called once, possibly twice more, she came upstairs to lie on the couch. In the meantime, David had moved the body to the bathtub. Mrs. Ulvinen was aware that while she was in the living room her son was dismembering the body but she turned her head away so that she could not see.

After dismembering the body and putting it in bags, Hoffman cleaned the bathroom, took the body to Weaver Lake, and disposed of it. On returning home, he told his mother to wash the cloth covers from the bathroom toilet and tank, which she did. David fabricated a story about Carol leaving the house the previous night after an argument, and Helen agreed to corroborate it. David phoned the police with a missing person report, and during the ensuing searches and interviews with the police, he and his mother continued to tell the fabricated story.

On August 19, 1980, David confessed to the police that he had murdered his wife. In his statement, he indicated that not only had his mother helped him cover up the crime, but she had known of his intent to kill his wife that night. After hearing Hoffman's statement the police arrested Mrs. Ulvinen and questioned her with respect to her part in the cover up. Police typed up a two-page statement, which she read and signed. The following day a detective questioned her further regarding events surrounding the crime, including her knowledge that it was planned.

Mrs. Ulvinen's relationship with her daughter-inlaw had been a strained one. She moved in with the Hoffmans on July 26, two weeks earlier to act as a live-in babysitter for their two children. Carol was unhappy about having her move in and told friends that she hated Helen, but she told both David and his mother that they could try the arrangement to see how it worked.

On the morning of the murder, Helen told her son that she was going to move out of the Hoffman residence because "Carol had been so nasty to me." In his statement to the police, David reported the conversation that morning as follows:

Sunday morning I went downstairs and my mom was in the bedroom reading the newspa per and she had tears in her eyes, and she said in a very frustrated voice, "I've got to find another house." She said, "Carol don't want me here," and she said, "I probably shouldn't have moved in here." And I said then, "Don't let what Carol said hurt you . It's going to take a little more period of readjustment for her." Then, "I told mom that I've got to do it tonight so that there can be peace in this house."

Q: What did you tell your mom that you were going to have to do that night?

A: I told my mom I was going to have to put her to sleep.

Q: Dave, will you tell us exactly what you told your mother that morning, to the best of your recollection?

A: I said I'm going to have to choke her tonight, and I'll have to dispose of her body so that it will never be found. That's the best of my knowledge.

Q: What did your mother say when you told her that?

A: She just-she looked at me with very sad eyes and just started to weep. I think she said something like "it will be for the best."

David spent the day fishing with a friend of his. When he got home that afternoon he had another conversation with his mother. She told him at that time about a phone conversation Carol had in which she discussed taking the children and leaving home. David told the police that during the conversation with his mother that afternoon he told her, "Mom, tonight's got to be the night."

Q: When you told your mother, "Tonight's got to be the night," did your mother understand that you were going to kill Carol later that evening?

A: She thought I was just kidding her about doing it. She didn't think I could.

Q: Why didn't your mother think that you could do it?

A: Because for some time I had been telling her I was going to take Carol scuba diving and make it look like an accident.

Q: And she said?

A: And she always said, "Oh, you're just kidding me."

Q: But your mother knew you were going to do it that night?

A: I think my mother sensed that I was really going to do it that night.

Q: Why do you think your mother sensed you were really going to do it that night?

A: Because when I came home and she told me what had happened at the house, and I told her, "Tonight's got to be the night," I think she said, again I'm not certain, that "it would be the best for the kids."

In this state, presence, companionship, and conduct before and after the offense are circumstances from which a person's participation in the criminal intent may be inferred. The evidence is undisputed that Ulvinen was asleep when her son choked his wife. She took no active part in the dismembering of the body but came upstairs to intercept the children, should they awake, and prevent them from going into the bathroom.

She cooperated with her son by cleaning some items from the bathroom and corroborating David's story to prevent anyone from finding out about the murder. She is insulated by statute from guilt as an accomplice after-the-fact for such conduct because of her relation as a parent of the offender. (See Minn. Stat. § 609.495, subd. 2 (1980).)

The jury might well have considered Ulvinen's conduct in sitting by while her son dismembered his wife so shocking that it deserved punishment. Nonetheless, these subsequent actions do not succeed in transforming her behavior prior to the crime to active instigation and encouragement. Minn. Stat. § 609.05, subd. 1 (1980) implies a high level of activity on the part of an aider and abettor in the form of conduct that encourages another to act. Use of terms such as "aids," "advises," and "conspires" requires something more of a person than mere inaction to impose liability as a principal.

The evidence presented to the jury at best supports a finding that Ulvinen passively acquiesced in her son's plan to kill his wife. The jury might have believed that David told his mother of his intent to kill his wife that night and that she neither actively discouraged him nor told anyone in time to prevent the murder. Her response that "it would be the best for the kids" or "it will be the best" was not, however, active encouragement or instigation. There is no evidence that her remark had any influence on her son's decision to kill his wife.

Minn. Stat. § 609.05, subd. 1 (1980) imposes liability for actions which affect the principal, encouraging him to take a course of action which he might not otherwise have taken. The state has not proved beyond a reasonable doubt that appellant was guilty of anything but passive approval. However morally reprehensible it may be to fail to warn someone of their impending death, our statutes do not make such an omission a criminal offense. We note that mere knowledge of a contemplated crime or failure to disclose such information without evidence of any further involvement in the crime does not make that person liable as a party to the crime under any state's statutes.

David told many people besides appellant of his intent to kill his wife but no one took him seriously. He told a co-worker, approximately three times a week, that he was going to murder his wife, and confided two different plans for doing so. Another co-worker heard him tell his plan to cut Carol's air hose while she was scuba diving, making her death look accidental, but did not believe him. Two or three weeks before the murder, David told a friend of his that he and Carol were having problems and he expected Carol "to have an accident sometime." None of these people has a duty imposed by law to warn the victim of impending danger, whatever their moral obligation may be. Her conviction must be reversed.

Questions

a. List all the facts (including words) surrounding Mrs. Ulvinen's behavior before or during the murder that might make her an accomplice.

b. List all the facts after the murder that a jury could infer proved Mrs. Ulvinen participated before or during the murder itself.

c. According to the court, why isn't Mrs. Ulvinen guilty of murder?

d. Do you agree with the court that, however morally reprehensible her behavior, she, nonetheless, wasn't an accomplice? Defend your answer.

2. State v. Chism (1983)

Brian Chism (the defendant) was convicted before the First Judicial District Court, Caddo Parish, of being an accessory after the fact, and was sentenced to three years in Parish Prison, with two and one-half years suspended, and the defendant appealed. The Louisiana Supreme Court affirmed the conviction, vacated the sentence, and remanded the case for resentencing.

On the evening of August 26, 1981, in Shreveport, Tony Duke gave Brian Chism a ride in his automobile. Brian Chism was impersonating a female, and Duke was apparently unaware of Chism's disguise. After a brief visit at a friend's house, the two stopped to pick up some beer at the residence of Chism's grandmother.

Chism's one-legged uncle, Ira Lloyd, joined them, and the three continued on their way, drinking as Duke drove the automobile. When Duke expressed a desire to have sexual relations with Chism, Lloyd announced that he wanted to find his ex-wife Gloria for the same purpose. Shortly after midnight, the trio arrived at the St. Vincent Avenue Church of Christ and persuaded Gloria Lloyd to come outside. As Ira Lloyd stood outside the car attempting to persuade Gloria to come with them, Chism and Duke hugged and kissed on the front seat as Duke sat behind the steering wheel.

Gloria and Ira Lloyd got into an argument, and Ira stabbed Gloria with a knife several times in the stomach and once in the neck. Gloria's shouts attracted the attention of two neighbors, who unsuccessfully tried to prevent Ira from pushing Gloria into the front seat of the car alongside Chism and Duke. Ira Lloyd climbed into the front seat also, and Duke drove off. One of the bystanders testified that she could not be sure but she thought she saw Brian's foot on the accelerator as the car left.

Lloyd ordered Duke to drive to Willow Point, near Cross Lake. When they arrived, Chism and Duke, under Lloyd's direction, removed Gloria from the vehicle and placed her on some high grass on the side of the roadway, near a wood line. Ira was unable to help the two because his wooden leg had come off. Afterward, as Lloyd requested, the two drove off, leaving Gloria with him.

There was no evidence that Chism or Duke protested, resisted, or attempted to avoid the actions which Lloyd ordered them to take. Although Lloyd was armed with a knife, there was no evidence that he threatened either of his companions with harm.

Duke proceeded to drop Chism off at a friend's house, where he changed to male clothing. He placed the bloodstained women's clothes in a trash bin. Afterward, Chism went with his mother to the police station at 1:15 a.m. He gave the police a complete statement, and took the officers to the place where Gloria had been left with Ira Lloyd. The police found Gloria's body in some tall grass several feet from that spot.

An autopsy indicated that stab wounds had caused her death. Chism's discarded clothing disappeared before the police arrived at the trash bin. According to Louisiana statute 14:25: An accessory after the fact is any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment ...

Whoever becomes an accessory after the fact shall be fined not more than five hundred dollars, or imprisoned, with or without hard labor, for not more than five years, or both; provided that in no case shall his punishment be greater than one-half of the maximum provided by law for a principal offender.

Chism appealed from his conviction and sentence and argues that the evidence was not sufficient to support the judgment. Consequently, in reviewing the defendant's assigned error, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that:

1. a completed felony had been committed by Ira Lloyd before Brian Chism rendered him the assistance described below; and

2. Chism knew or had reasonable grounds to know of the commission of the felony by Lloyd; and

3. Chism gave aid to Lloyd personally under circumstances that indicate either that he actively desired that the felon avoid or escape arrest, trial conviction, or punishment or that he believed that one of these consequences was substantially certain to result from his assistance.

There was clearly enough evidence to justify the finding that a felony had been completed before any assistance was rendered to Lloyd by the defendant. The record vividly demonstrates that Lloyd fatally stabbed his ex-wife before she was transported to Willow Point and left in the high grass near a wood line. Thus, Lloyd committed the felonies of attempted murder, aggravated battery, and simple kidnapping, before Chism aided him in any way. A person cannot be convicted as an accessory after the fact to a murder because of aid given after the murderer's acts but before the victim's death, but under these circumstances the aider may be found to be an accessory after the fact to the felonious assault.

The evidence overwhelmingly indicates that Chism had reasonable grounds to believe that Lloyd had committed a felony before any assistance was rendered. In his confessions and his testimony Chism indicates that the victim was bleeding profusely when Lloyd pushed her into the vehicle, that she was limp and moaned as they drove to Willow Point, and that he knew Lloyd had inflicted her wounds with a knife.

The Louisiana offense of accessory after the fact deviates somewhat from the original common law offense in that it does not require that the defendant actually know that a completed felony has occurred. Rather, it incorporates an objective standard by requiring only that the defendant render aid "knowing or having reasonable grounds to believe" that a felony has been committed.

The closest question presented is whether any reasonable trier of fact could have found beyond a reasonable doubt that Chism assisted Lloyd under circumstances that indicate that either Chism actively desired that Lloyd would avoid or escape arrest, trial, conviction, or punishment, or that Chism believed that one of these consequences was substantially certain to result from his assistance.

In this case we conclude that a trier of fact reasonably could have found that Chism acted with at least a general intent to help Lloyd avoid arrest because:

1. Chism did not protest or attempt to leave the car when his uncle, Lloyd, shoved the mortally wounded victim inside;

2. he did not attempt to persuade Duke, his would-be lover, to exit out the driver's side of the car and flee from his uncle, whom he knew to be one-legged and armed only with a knife;

3. he did not take any of these actions at any point during the considerable ride to Willow Point;

4. at their destination, he docilely complied with Lloyd's directions to remove the victim from the car and leave Lloyd with her, despite the fact that Lloyd made no threats and that his wooden leg had become detached;

5. after leaving Lloyd with the dying victim, he made no immediate effort to report the victim's whereabouts or to obtain emergency medical treatment for her;

6. before going home or reporting the victim's dire condition he went to a friend's house, changed clothing and discarded his own in a trash bin from which the police were unable to recover them as evidence;

7. he went home without reporting the victim's condition or location;

8. and he went to the police station to report the crime only after arriving home and discussing the matter with his mother.

Chism asserted that he helped to remove the victim from the car and to carry her to the edge of the bushes because he feared that his uncle would use the knife on him. However, fear as a motivation to help his uncle is inconsistent with some of Chism's actions after he left his uncle. Consequently, we conclude that despite Chism's testimony, the trier of fact could have reasonably found that he acted voluntarily and not out of fear when he aided Lloyd and that he did so under circumstances indicating that he believed that it was substantially certain to follow from his assistance that Lloyd would avoid arrest, trial, conviction, or punishment.

For the foregoing reasons, it is also clear that the judge's verdict was warranted. There is evidence in this record from which a reasonable trier of fact could find a defendant guilty beyond a reasonable doubt. Therefore, we affirm the defendant's conviction.

We note, however, that the sentence imposed by the trial judge is illegal. The judge imposed a sentence of three years. He suspended two and one-half years of the term. The trial judge has no authority to suspend part of a sentence in a felony case. The correct sentence would have been a suspension of all three years of the term, with a six-month term as a condition of two years' probation. We therefore vacate the defendant's sentence and remand the case for resentencing. Conviction AFFIRMED; sentence vacated; REMANDED.

I respectfully dissent from what appears to be a finding of guilt by association. The majority lists five instances of inaction, or failure to act, by defendant:

1. did not protest or leave the car;

2. did not attempt to persuade Duke to leave the car;

3. did neither (1) nor (2) on ride to Willow Point; ...

4. made no immediate effort to report crime or get aid for the victim; ...

5. failed to report victim's condition or location after changing clothes.

The three instances of defendant's action relied on by the majority for conviction were stated to be:

1. complying with Lloyd's direction to remove the victim from the car and leave the victim and Lloyd at Willow Point;

2. changing clothes and discarding bloody garments; and ...

3. discussing the matter with defendant's mother before going to the police station to report the cnme.

None of these actions or failures to act tended to prove defendant's intent, specifically or generally, to aid defendant avoid arrest, trial, conviction or punishment.

Questions

a. Identify the elements of accessory after the fact according to the Louisiana statute.

b. List all the facts stated by the court, and then match them to each of the elements of the statute.

c. Summarize the court's conclusions regarding the evidence of each of the elements.

d. Do you agree with the court that Chism is guilty of being an accessory after the fact? Back up your answer with facts in the case.

e. Summarize the reasons the dissent couldn't go along with the majority. Do you agree with the dissent? Defend your answer.

3. State v. Zeta Chi Fraternity (1997)

Zeta Chi (Defendant), a college fraternity, was convicted, following trial in the Superior Court, Strafford County, of selling alcohol to a person under the age of 21, and of prostitution. Defendant appealed. The Supreme Court affirmed the convictions.

Zeta Chi, a New Hampshire corporation and fraternity at the University of New Hampshire in Durham, held a "rush" at its fraternity house to attract new members. In order to encourage people to attend the rush, Zeta Chi hired two female strippers to perform at the event. Fraternity brothers encouraged guests to give the strippers dollar bills so that they would continue to perform. The brothers also told guests that the more money the strippers were given, the more that they would do. One of the members of the fraternity was providing change for larger bills.

As part of the performance, the dancers lay on a mattress brought out by members of the fraternity and simulated oral sex on each other. At one point, a guest gave five dollars to one of the strippers who sat on the guest's lap. When a brother moved the dancer along, the guest complained that he had given five dollars. The stripper took the guest to the mattress and pushed his head into her crotch. Two witnesses testified at trial that they saw guests being led to the mattress after they gave money, at which point the guests then performed oral sex on the dancer.

In addition, Andrew Strachan, a nineteen-yearold guest at the fraternity party, testified that at some point during the evening he learned that beer was available from a soda machine. He made his way to an apartment in another part of the fraternity house where the machine was located, waited in line with three or four other people, and purchased three to five cans of beer. Strachan also testified that he noticed someone making change for the machine.

The fraternity's secretary testified that the fraternity members voted not to provide alcohol at the rush and that they moved the vending machine that contained beer to a separate apartment in another part of the fraternity house for the rush. He also testified, however, that the fraternity had control over the vending machine and its proceeds and that only fraternity members would have an interest in making change for the machine.

I. SUFFICIENCY OF EVIDENCE

A. Illegal Sale Of Alcohol Zeta Chi argues that the State failed to prove that it caused alcohol to be sold to Strachan. See RSA 179:5:

I. No licensee, salesperson, direct shipper, common carrier, delivery agent, nor any other person, shall sell or give away or cause or allow or procure to be sold, delivered or given away any liquor or beverage to a person under the age of 21 or to an intoxicated individual.

II. No licensee, manager or person in charge of a licensed premises shall allow or permit any individual, who is under the age of 21, to possess or consume any liquor or beverage on the licensed premises.

Zeta Chi asserts that because the fraternity voted not to provide beer at the rush and the soda machine was moved from the main area in the fraternity house to a separate apartment at the back of the house, Zeta Chi did not have control over the machine, and, therefore, could not have caused the sale of alcohol from the machine. Essentially, Zeta Chi is arguing that the individuals responsible for making the beer available for sale to Strachan were not acting on behalf of the corporation or within the scope of their authority.

We begin by noting that the only defendant in this case is a corporate entity. A corporation is a jural person, but not a person in fact. It is an artificial creature, acting only through agents .... A corporation may be held criminally liable for criminal acts performed on its behalf by agents or employees acting within the scope of their authority or employment. The criminal conduct need not have been performed, authorized, ratified, adopted or tolerated by the corporation's directors, officers or other high managerial agents in order to be chargeable to the corporation.

In fact, a corporation can be convicted for actions of its agents even if it expressly instructed the agents not to engage in the criminal conduct. The agents, however, must have been acting within the scope of their actual or apparent authority. Express authority exists when the principal explicitly manifests its authorization for the agent to act. Implied authority is the reasonable incident or construction of the terms of express authority or results from acquiescence by the principal in a course of dealing by the agent. Apparent authority, on the other hand, exists where the principal so conducts itself as to cause a third party to reasonably believe that the agent is authorized to act.

It is the rare case in which the corporate leadership explicitly authorizes its agents to engage in criminal conduct. Of necessity, the proof of authority to so act must rest on all the circumstances and conduct in a given situation and the reasonable inferences to be drawn therefrom.

Evidence at trial indicates that Zeta Chi had control over the apartment in which the vending machine was located, even though it had voted to make the apartment separate from the fraternity house. More importantly, however, witnesses testified that Zeta Chi had control over the soda machine; that only Zeta Chi had an interest in the proceeds from the machine; that only fraternity members had keys to the apartment in which the machine was located; that someone was making change for the machine; and that no one would have an interest in making change except a member of the fraternity. We believe that from these facts the jury could reasonably have found that an agent of Zeta Chi sold beer from the vending machine and that this agent was acting on behalf of the corporation and within the scope of his authority.

Zeta Chi next argues that the evidence was insufficient for the jury to find that Zeta Chi acted recklessly, the mens rea charged in the indictment. Because Zeta Chi is a corporation, its mental state depends on the knowledge of its agents. The corporation is considered to have acquired the collective knowledge of its employees and is held responsible for their failure to act accordingly.

A person acts recklessly with respect to a material element of an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the circumstances known to him, its disregard constitutes a gross deviation from the conduct that a law-abiding person would observe in the situation.

In this case, the jury could reasonably have found that Zeta Chi acted recklessly from the facts that about 150 guests, many of them under the age of twenty-one, were at the rush party that had been widely publicized on campus; that it was Zeta Chi's vending machine; that only fraternity members had keys to the apartment in which the machine was located; that party guests gained access to the machine; that someone was making change; and that a number of people were waiting in line to use the machine.

B. Prostitution

Zeta Chi contends that the State failed to prove that it knowingly allowed the prostitution and that if prostitution occurred, the individuals who allowed it were not acting within the scope of their authority.

We will first address the issue of agency. As noted above, in the context of corporate criminal liability, the corporation acts through its agents and those agents must be acting within the scope of either their actual or apparent authority in order for the corporation to be liable for their actions. Zeta Chi asserts that because the members of the fraternity announced that guests were not allowed to touch the dancers and that, if the dancer stayed too long with one guest, members of the fraternity would move her along, this indicated the lack of actual or apparent authority. Whether an agent has acted within his actual or apparent authority ... is a question for the trier of fact. Apparent authority can result when the principal fails to disapprove of the agent's act or course of action so as to lead the public to believe that his agent possesses authority to act ... in the name of the principal. In this case, there was testimony that the guests were told that if they paid more money the dancers would do more; that on more than one occasion guests were led to the mattress that was brought into the room by the brothers to perform oral sex in exchange for money; and that at least one guest performed oral sex on the dancer for "quite a while." From these facts the jury could reasonably have found that members of the fraternity acted within the scope of their authority and on behalf of the corporation in allowing oral sex to be performed in exchange for money.

Zeta Chi argues that the State failed to prove the requisite mens rea with regard to the prostitution charge, that is, that Zeta Chi knowingly permitted oral sex to occur at the party. "A person acts knowingly with respect to conduct or to a circumstance that is a material element of an offense when he is aware that his conduct is of such nature or that such circumstances exist." Zeta Chi argues that the material element to which the "knowingly" mens rea applies is permission. Zeta Chi contends that there was no opportunity for Zeta Chi to manifest its lack of permission before the oral sex occurred because the dancer's actions were unexpected.

Based on the facts of this case, Zeta Chi's argument is without merit. As noted above, because Zeta Chi is a corporation, and a corporation acts through its agents, the knowledge obtained by the agents of the corporation acting within the scope of their agency is imputed to the corporation. There was testimony that several guests performed oral sex on the dancer and that on at least one occasion it occurred for several minutes. Moreover, the fraternity president testified that he "was very well in control" of the party. Therefore, even if the first act caught members of the fraternity by surprise, the jury could reasonably have inferred that Zeta Chi knowingly permitted oral sex to occur from Zeta Chi's failure to prevent the subsequent conduct.

A corporation is not insulated from criminal liability merely because it published instructions and policies which are violated by its employee; the corporation must place the acts outside the scope of an employee's employment by adequately enforcing its rules. Convictions affirmed.

Questions

a. State the elements of vicarious liability according to New Hampshire law.

b. List all the facts relevant to deciding whether Zeta Chi, through its officers, was acting within its authority in each of the crimes.

c. Summarize the court's arguments upholding the trial court's conviction in each of the offenses.

d. In your opinion, was Zeta Chi guilty of selling alcohol to a minor? Of prostitution? Back up your answer with facts and arguments from the court's opinion.

4. State v. Akers (1979)

Parent defendants were found guilty of violating a snowmobile statute which makes parents vicariously liable for the acts of their children simply because they occupy the status of parents. The parents waived all right to an appeal de nova ("new trial") to superior court. The parents objected to the constitutionality of the parental responsibility statute. The New Hampshire Supreme Court sustained the objections.

The defendants are fathers whose minor sons were found guilty of driving snowmobiles in violation of RSA 269-C:6-a II (operating on public way) and III (reasonable speed) (Supp. 1977). RSA 269-C:24 IV, which pertains to the operation and licensing of Off Highway Recreational Vehicles (OHRV), provides that "the parents or guardians or persons assuming responsibility will be responsible for any damage incurred or for any violations of this chapter by any person under the age of 18." Following a verdict of guilty for violating RSA 269-C:24 IV the two defendants waived all right to an appeal de nova to the superior court and all questions of law were reserved and transferred by the District Court to the New Hampshire Supreme Court.

The defendants argue that ( 1) RSA 269-C:24 IV, the statute under which they were convicted, was not intended by the legislature to impose criminal responsibility, and (2) if in fact the legislative intention was to impose criminal responsibility, then the statute would violate N.H. Const. pt. 1, art. 15 and U.S. Const. amend . XIV, § 1.

The language of RSA 269-C:24 IV, "Parents will be responsible for any violations of this chapter by any person under the age of 18," clearly indicates the legislature's intention to hold the parents criminally responsible for the OHRV violations of their minor children. It is a general principle of this State's Criminal Code that "a person is not guilty of an offense unless his criminal liability is based on conduct that includes a voluntary act or the voluntary omission to perform an act of which he is physically capable." RSA 269-C:24 IV seeks to impose criminal liability on parents for the acts of their children without basing liability on any voluntary act or omission on the part of the parent. Because the statute makes no reference at all to parental conduct or acts it seeks to impose criminal responsibility solely because of their parental status contrary to the provisions of RSA 626:1.

The legislature has not specified any voluntary acts or omissions for which parents are sought to be made criminally responsible and it is not a judicial function to supply them. It is fundamental to the rule of law and due process that acts or omissions which are to be the basis of criminal liability must be specified in advance and not ex post facto. N.H. Const. pt. 1, art. 23.

It is argued that liability may be imposed on parents under the provisions of RSA 626:8 II(b), which authorizes imposing criminal liability for conduct of another when "he is made accountable for the conduct of such other person by the law defining the offense." This provision comes from the Model Penal Code § 2.04(2)(6). The illustrations of this type of liability in the comments to the Code all relate to situations involving employees and agents, and no suggestion is made that it was intended to authorize imposing vicarious criminal liability on one merely because of his status as a parent.

Without passing upon the validity of statutes that might seek to impose vicarious criminal liability on the part of an employer for acts of his employees, we have no hesitancy in holding that any attempt to impose such liability on parents simply because they occupy the status of parents, without more, offends the due process clause of our State constitution.

Parenthood lies at the very foundation of our civilization. The continuance of the human race is entirely dependent upon it. It was firmly entrenched in the Judeo-Christian ethic when "in the beginning" man was commanded to "be fruitful and multiply" (Genesis I). Considering the nature of parenthood, we are convinced that the status of parenthood cannot be made a crime. This, however, is the effect of RSA 269-C:24 IV. Even if the parent has been as careful as anyone could be, even if the parent has forbidden the conduct, and even if the parent is justifiably unaware of the activities of the child, criminal liability is still imposed under the wording of the present statute.

There is no other basis for criminal responsibility other than the fact that a person is the parent of one who violates the law. One hundred and twenty seven years ago the justices of this court in giving their opinions regarding a proposed law that would have imposed vicarious criminal liability on an employer for acts of his employee stated, "(b)ut this does not seem to be in accordance with the spirit of our Constitution ... " Because the net effect of the statute is to punish parenthood, the result is forbidden by substantive due process requirements of N.H. Const. pt. 1, art. 15.

Exceptions sustained.

The majority read RSA 269-C:24 IV in isolation. They conveniently ignore RSA 626:8 (Criminal Liability for Conduct of Another), which provides in subsection II that "(a) person is legally accountable for the conduct of another person when: (b) he is made accountable for the conduct of such other person by the law defining the offense." RSA 269- C:24 IV is such a law. Imposing criminal liability based on status for certain violations of a mala prohibitum nature does not offend constitutional requirements.

Even if I were to accept the majority's conclusion that the vicarious imposition of criminal liability on parents of children who have committed an OHRV [Off Highway Recreational Vehicles] violation under RSA ch. 269-C is constitutionally impermissible, I would still uphold the validity of RSA 269-C:24 IV. A closer reading of this State's Criminal Code belies the majority's reasoning that RSA 269-C:24 IV holds parents of minor offenders criminally responsible for their children's offenses solely on the basis of their parental status. RSA 626:1 I, enunciating the fundamental principle of the Criminal Code, states that all criminal liability must be based on a "voluntary act" or "voluntary omission."

When RSA 269-C:24 IV is read in conjunction with RSA 626: 1 I, a parental conviction can result only when the State shows beyond a reasonable doubt that a minor child has committed a violation under a provision of chapter 269-C, and that his parent voluntarily performed or omitted to perform an act such as participating in the minor's conduct, or entrusting, or negligently allowing his minor child to operate an OHRV.

When RSA 269-C:24 IV is construed to require a voluntary act or voluntary omission in accordance with RSA 626:1 I, there are no due process infirmities, either under N.H.Const. pt. 1, art. 15 or U.S. Const. amend. XIV, § 1. Culpable intent is not required to impose criminal penalties for minor infractions. "It is well settled in this jurisdiction that the Legislature may declare criminal a certain act or omission to act without requiring it to be done with intent." When the legislature imposes criminal responsibility without requiring intent, we will override it only when such imposition violates concepts of fundamental fairness.

In the present case, there is a demonstrable public interest to assure the safe operation of OHRVs, and the minor penalties imposed upon violators of RSA 269-C:24 IV are insubstantial. In such circumstances, we will not second guess the wisdom of the legislature.

Public welfare offenses requiring no criminal intent have also been held consistent with the due process requirements of U.S. Const. amend. XIV, § 1. "There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition .. .. In vindicating its public policy a State in punishing particular acts may provide that "he shall do them at his peril."

Questions

a. Exactly what does the New Hampshire statute prohibit?

b. Summarize all of the arguments of the majority and dissenting opinions. Which side do you agree with? Defend your answer.

c. Apart from the legal and constitutional arguments, do you think it's good public policy to make parents criminally liable for their children's crimes ? Defend your answer.

Chapter 8

1. Dabney v. State (2004)

Franklin Roosevelt Dabney (Defendant) was convicted, after a jury trial in the Circuit Court, Baltimore County, of attempted fourth-degree burglary. Defendant appealed. The Court of Special Appeals reversed.

The Baltimore County Police Department charged Franklin Roosevelt Dabney (Appellant) with attempted fourth-degree burglary. Attempted fourthdegree burglary? It smacks of convicting Al Capone, after Elliot Ness had been on his trail for a decade, of income tax evasion. It is perfectly legal, of course, but there remains the lingering aftertaste of overkill. Dabney was convicted by a Baltimore County jury of attempted burglary in the fourth degree, punishable by up to 3 years in prison. Dabney appealed on the ground that he was convicted of a non-existent crime, to wit, an attempt to commit an attempt.

At approximately midnight on the evening of January 19-20, 2003, Dabney left his apartment in northwestern Baltimore County, got into his black Infiniti, and drove out of his neighborhood. For reasons unexplained to us in this record, a police surveillance team, consisting of six or seven unmarked police cars, was on station, waiting to monitor Dabney's every move. They monitored him as he stopped at a service station and purchased gasoline. As the appellant then approached the Reisterstown Road entrance to the Baltimore Beltway (l-695) and turned east on it toward Towson, a police helicopter joined the surveillance.

On his way around the Beltway, the appellant first took the Dulaney Valley Road exit and detoured through a residential neighborhood just off Dulaney Valley Road. Apparently finding nothing to his liking, he returned to the Beltway and resumed his journey east and south. Without a single traffic infraction, the appellant followed the Beltway to the southeastern corner of the county, where he left the Beltway and proceeded into a residential neighborhood in White Marsh.

Using a thermal imaging camcorder, Officer Connolly described the appellant's behavior once inside the residential neighborhood: "[He] just did a lot of driving around all of these little side streets." Dabney parked his car on Ballygar Road, around the corner from the home of Vendel and Patricia Ann Katona, who lived on the perpendicular Kilbride Road. When he got out of his vehicle, he walked up Ballygar Road to its intersection with Kilbride. He turned right on Kilbride and walked to the Katona home, which is the second house in from the intersection.

Mr. and Mrs. Katona did not know Dabney, had neither met him nor heard of him, and did not give him permission to enter onto their property. The light was on in the Katona living room. Mrs. Katona was still up, reading and watching television, although Mr. Katona had gone to bed at around 11:30. Two cars were parked in the Katonas's front driveway. Dabney walked up that driveway, paused for about ten seconds between the two parked cars, walked back down the driveway to the street, and then crossed the lawn to the front porch of the house. After standing on the porch for a short time, Dabney walked around the side of the house and then to the rear of the house.

Then he came back around from the rear of the house and up along the side of the house.

Then, a car came down the street, pulled up and stopped, approximately, in front of the house that he was at. He then ran down behind the house, ran down behind the neighbor's house, and went down to the house at the corner, and hid behind the house here at the corner. He stayed there, approximately, maybe 20 seconds or so. Then, he ran straight from this house back to his car.

Approximately five seconds later, Dabney's car drove off. He drove immediately away from the White Marsh neighborhood. The police didn't stop him. Indeed, he wasn't arrested until a month later, at which time he was charged with attempted fourth degree burglary. The thermal imaging tape was played for the jury. Dabney didn't testify. The odyssey was never explained.

Dabney wasn't convicted of a consummated fourthdegree burglary, but only of an attempted fourthdegree burglary. "Ay, there's the rub."

Of the various forms of criminal behavior covered by the umbrella crime of fourth-degree burglary, the attempted sub variety for which the appellant was primarily, if not exclusively, tried was a type of criminal behavior that had earlier been one of the two ways in which an accused could be found guilty of being a rogue and vagabond. Maryland Code, Criminal Law Article, § 6-205(c) provides, in pertinent part: "A person, with the intent to commit theft, may not be in or on ... a yard, garden, or other area belonging to the dwelling ... of another."

Dabney was clearly guilty of a consummated fourth-degree burglary of that particular subvariety and not of a mere attempt. As the case was ready to go to the jury, the prosecutor was aware of a looming problem as he addressed the court. "We have to address the verdict sheet, because it's not attempted burglary in the fourth degree, it's burglary in the fourth degree-he was on that property with the intent to steal." (Emphasis supplied.)

The court reminded the prosecutor of the obvious and prominent impediment to correcting the verdict sheet. The appellant had never been charged with a consummated fourth-degree burglary and consequently could not be convicted of it. The verdict sheet, in a word, could not be corrected. The prosecutor responded, "the State's argument regarding that would be that he attempted to have an intent to commit a theft," whatever that may mean. There may be a subtlety there beyond our comprehension, but we have no idea what it may be. The court subsequently instructed the jury on the law of attempt and on fourth-degree burglary of the rogue and vagabond subvariety. The jury returned a verdict of guilty of attempted fourth-degree burglary.

The problem is not that proof of consummation would not also support a conviction for the attempt, because the attempted crime is, as a matter of logical necessity, a lesser included crime within the consummated crime. Some attempts fail and others succeed, but they are attempts in either event. The attempt simply lacks one element possessed by the consummated crime, and it has no independent element of its own. The problem is that an attempt to commit this particular predicate crime (a fourth-degree burglary of the rogue and vagabond subvariety) may carry in its genes a different but innate impediment all of its own, and thereon hangs the tale that follows.

THE COMMON LAW MISDEMEANOR OF ATTEMPT

In Gray v. State, 43 Md. App. 238, 239, 403 A. 2d 853 (1979), this Court traced the early development of the common law misdemeanor [in England]. We then turned to the firm implementation of attempt law into the soil of Maryland.

It is, furthermore, clear that the common law misdemeanor of criminal attempt, notwithstanding its post-Revolutionary final crystallization, has always been recognized as part of the common law of Maryland.

From the beginning, it has been indisputably established that the common law misdemeanor consists of two elements: 1) the mens rea of intending to commit a particular crime and 2) the actus reus of taking a substantial step, beyond mere preparation, toward the commission of the targeted crime.

BURGLARY IN THE FOURTH DEGREE

Fourth-degree burglary is an umbrella statute, embracing no less than fo ur subvarieties of now criminal behavior. What is true of some of those subvarieties, moreover, is not true of others. The first two, for instance, are mere general intent crimes, whereas the latter two are specific intent crimes. The first two are recent statutory inventions, whereas the latter two were already venerable at the time of Blackstone and Hale. It is a miscellaneous collection, with its common denominator or organizing principle being that the various offenses share, if nothing else, the same level of appropriate punishment of being "subject to imprisonment not exceeding 3 years." § 6-205(e).

[Only the third subvariety applies here.] (c) Prohibited-Being in or on dwelling, storehouse, or environs. A person, with the intent to commit theft, may not be in or on:

(1) the dwelling or storehouse of another; or

(2) a yard, garden, or other area belonging to the dwelling or storehouse of another. [Subvariety (c)] does not require the breaking and entering of a structure. It does demand, however, the enhanced mens rea of a specific intent, "to commit theft." [It was] formerly constituted the independent rogue and vagabond statute. Art. 27, § 490.

ROGUES AND VAGABONDS

Whereas subvarieties (a) and (b) of fourth-degree burglary are of recent vintage (dating from 1973 and 1979, respectively), subvarieties (c) and (d) enjoy an ancient lineage. Interesting insight into the common law's attitude toward rogues and vagabonds may be gleaned from Part IV (Of Public Wrongs) of Sir William Blackstone's Commentaries on the Law of England (Robert Malcolm Kerr edition, 1962), first published in 1765.

Aimed at persons of disreputable status or character, his introduction to the category is enlightening. [See Chapter 1, p. 8, "Offences against public police."] Of the thirteen categories of rogues and vagabonds that he describes, it is category 10 and 11 that eventually made it to Maryland. [Category 11 refers to subvariety (c): "Persons being found in or upon any dwelling-house, warehouse, or out-house, or in any enclosed yard, garden, or area, for any unlawful purpose."

THE ROAD NOT TAKEN

Of the four subvarieties of fourth-degree burglary, only two of them, on the facts of this case, might arguably have qualified as the predicate or target crime for the attempt that was charged. Subvariety (b) was inapplicable because no "storehouse" was involved. Subvariety (d) was inapplicable because no "burglar's tool" was involved. On these facts, the predicate crime attempted, assuming the sufficiency of the proof of intent, might have been subvariety (a), the breaking and entering of the dwelling of the Katonas. It might also have been su bvariety ( c ), being in the yard or other area belonging to the dwelling of the Katonas with the intent to commit a theft. It might easily have been both.

It appears to us that the overall strategy of the prosecution was not carefully planned. This is ironic in view of the massive investigative effort that had preceded it. If subvariety (c) of fourth-degree burglary was going to be relied upon, the appellant should have been charged with a consummated fourthdegree burglary, and not merely with an attempt.

WAS THIS A COGNIZABLE ATTEMPT?

[Omitted]

A. Statement No. 1: "There is No Such Crime as an Attempted Assault" [Omitted]

B. Statement No. 2: "There Is No Such Crime as an Attempted Attempt" [Omitted]

C. Statement No. 4: "There Is No Such Crime as an Attempt to Commit an Inchoate Crime" [Omitted]

D. Statement No. 3: "There Is No Such Crime as an Attempt to Commit a Crime in the Nature of an Attempt"

It is important to keep in mind that prosecution for attempt is only one of several ways in which the criminal law can reach conduct merely tending toward the doing of some harm otherwise proscribed by law. The crimes of assault and burglary, which served as a means of dealing with the most common forms of attempt prior to recognition of attempt as a distinct crime, are still very much with us. In addition, even the most modern codes include crimes defined in terms of conduct which is arguably of itself harmless but which has been made criminal because it is (or is very likely to be) a step toward the doing of harm. For example, one modern code includes not only a host of possession-type crimes ( e.g., possession of obscene material with intent to disseminate it, possession of a forged instrument with intent to issue or deliver same, possession of burglary tools with intent to commit a burglary, possession of explosives or incendiary devices with intent to use them in committing an offense, possession of any instrument adapted for the use of narcotics by subcutaneous injection, possession of weapons with intent to use same against another unlawfully, possession of a gambling device), but also other substantive offenses defined in terms of using certain items for a particular purpose, offering to do something, attracting an intended victim, or even being in a certain place for a bad purpose. (Emphasis added by the court.)

Many (but not all) of these statutes reach conduct which is merely preparatory in nature and which thus would not be encompassed within the general law of attempts. A fourth-degree burglary of subvariety (c) might well be deemed "conduct ... which has been made criminal because it is ... a step toward the doing of harm."

We are satisfied that subvariety (c) of fourth-degree burglary (and subvariety (d) for that matter) is a crime in the nature of an attempt. Its actus reus of being on the property belonging to the dwelling of another has no criminal significance in its own right absent the mens rea of an intent to commit theft. The requirement of that mens rea makes the defendant's presence at that location a substantial step in attempting a theft.

To be sure, the same observation might also be made about burglary in the first degree and perhaps the two phenomena are simply at different points along the same continuum. That does not mean, however, that being at different points on the same continuum may not have critical significance. The critical difference may be between 1) a very serious actus reus with a coincidental intent to commit some further criminal act and 2) a relatively far less serious actus reus with a primary intent to commit some further criminal act.

Whether a crime qualifies as being in the nature of an attempt may ultimately depend on how much of its collective criminality is wrapped up in its attempt component. The critical difference may be whether the attempt component of a larger crime is its major theme, giving it its essential identity, or only a minor theme.

The term "a crime in the nature of an attempt" may, indeed, require finer tuning in the future on a case-by-case basis. It would seem that it should not be held to embrace major crimes, capable of full consummation in their own right, simply because they might, coincidentally, contemplate the achievement of some further purpose. The drawing of a final line between Statement# 3 of the proposition under analysis and Statement# 4, however, may have to await ad hoc resolution as the cases develop.

OUR HOLDING

We hold that the rogue and vagabond subvariety of fourth-degree burglary that was the target of the attempt in this case was itself a crime in the nature of an attempt. We further hold that there is no such cognizable crime as an attempt to commit a crime in the nature of an attempt. The appellant, therefore, was convicted of a non-existent crime, and the conviction must be reversed.

Questions

a. List all of the facts relevant to deciding whether Franklin Roosevelt Dabney committed subvariety rogue and vagabond attempted fourth-degree burglary.

b. Summarize the trial court's holding that Dabney committed attempted fourth-degree burglary.

c. Summarize the Special Court of Appeals' arguments that Dabney could not commit attempted fourth-degree burglary.

d. In your opinion, should it be possible to commit attempted fourth-degree burglary? Explain your answer.

2. State v. King (2004)

Rakeem D. King (Defendant) was convicted in the Circuit Court, Charleston County, J.C. Nicholson, Jr., J., of attempted murder, armed robbery, and possession of a firearm during the commission of a violent crime. King appealed. The SC Court of Appeals reversed.

On November 26, 2010, at 4:06 A.M., a customer called Yellow Cab requesting to be picked up at 1808 Carlton Street in North Charleston. The operator recorded the customer's telephone number from Yellow Cab's caller identification. At 4: 11 A.M., Yellow Cab dispatched Dario Brown to that location. Brown was familiar with the Carlton Street area because his aunt had lived at 1809 Carltondirectly across the street from 1808 Carlton. Brown testified he expected the customer to be his cousin because he lived in the area, and Brown had picked him up at the same location and time of night in the past. Brown saw a person coming from the yard of 1809 Carlton-his aunt's old house, which was abandoned at the time. When the person got into the back of the cab, Brown realized it was not his cousin. Brown turned around, looked the man in the face, and asked why he came from the abandoned house. Brown and the man began to argue about whether the man lived at 1809 Carlton.

Brown testified he drove toward the dead-end of Carlton Street so he could make a U-turn and take the man to his destination. Brown stated that before he reached the end of the street, "I heard his cocking a pistol. When I looked back he had raised the gun to my face and told me to give him the money." Brown handed the man "give away money." The man told Brown it was not enough, however, and pointed the gun at the back of Brown's head. Brown testified, "I made an attempt to move [the gun] with my elbow and my forearm trying to move it out of the way telling him he doesn't have to rob me." The man demanded more money. Brown opened the door to the cab and had "one foot on the ground and [his] other foot on the brake." Brown testified the gun was " [ s ]till placed at the back of my neck." With his hands over his head, Brown "gave him a look in his eye" and testified the man "looked as if he was going to shoot me." When Brown tried again "to move the gun away from [his] face," the man shot Brown in the arm.

Brown testified he jumped from the cab and ran toward the dead-end of Carlton Street. "I looked back and I saw him in pursuit behind me"-"maybe two steps behind me." Brown explained he tried to jump over a fence at the end of the street, "but my arm gave out so I kind of flipped head first over [the fence] and landed on my back." Brown testified, "When I hit the ground ... he was ... holding the gate with one hand and reaching over with his other hand with the gun in it." Brown testified the man fired another shot at him. Brown crawled behind a van, and the man fired more shots. Brown testified the man was "still outside the gate saying that he is not going to shoot me anymore if I just give him the money." Brown stated, "I want to say in all I heard maybe six or seven shots but I can't be exact."

Brown eventually called the police from his cell phone. Officer Jennifer Butler testified she arrived at 4:21 A.M. and saw Brown's empty cab "that had run into a pole on the side of the road." Shortly thereafter, she made contact with Brown and called emergency medical services. She did not see anyone else. After Brown was taken to the hospital, Officer Butler and a detective walked door-to-door "in the immediate area ... to speak with the people to see if they heard anything or happened to see anything." Over King's hearsay objection, Officer Butler testified she "learned there was more than one shot"-"approximately three or four shots" were fired.

Kelly Murphy- a crime scene technician-testified she found "a .25 auto shell casing" in the cab. Murphy also testified she and four other officers searched the Carlton Street area for two hours and found no other shell casings. Murphy conceded on cross-examination that "if there were shells there I needed to find them," and "if there were any of those anywhere I would have collected those."

[Eyewitness ID section omitted.] The jury found King guilty of attempted murder, armed robbery, and possession of a firearm during the commission of a violent crime. The trial court sentenced King to thirty years in prison for armed robbery and five years for possession of a firearm, with those sentences to run consecutive. For the attempted murder conviction, the trial court sentenced King to ten years in prison, concurrent with the other sentences. [Only attempted murder included in this excerpt.]

King argues the State must prove as an element of attempted murder that King acted with specific intent to kill Brown. We agree, and thus we find the trial court erred when it charged the jury, "A specific intent to kill is not an element of attempted murder but it must be a general intent to commit serious bodily harm."

Section 16-3-29 of the South Carolina Code (Supp. 2014) defines attempted murder: "A person who, with intent to kill, attempts to kill another person with malice aforethought, either expressed or implied, commits the offense of attempted murder." Because the crime is defined by statute, we first look to the language of the statute to determine what the Legislature intended the elements of the crime to be-including the level of intent required.

If the language of a statute is unambiguous and conveys a clear meaning, the court must determine the intent of the Legislature exclusively from that language, and other rules of statutory interpretation are not needed. The phrase "with intent to kill" in section 16-3-29 does not clearly indicate what level of intent the Legislature meant to require the State to prove because the word "intent" can mean anything from purpose to negligence. The required [intent] for a particular crime can be classified into a hierarchy of culpable states of mind in descending order of culpability, as purpose, knowledge, recklessness, and negligence. Therefore, we must look beyond the words of the statute and use our rules of statutory construction to determine what the Legislature intended.

Section 16-3-29 was enacted in 2010 as part of the Omnibus Crime Reduction and Sentencing Reform Act. Before 2010, our courts held attempt crimes require the State to prove the defendant had specific intent to complete the attempted crime. In State v. Sutton, 532 S.E.2d 283, 285 (2000), decided before the Legislature enacted section 16-3-29-our supreme court faced the question "whether attempted murder was an offense in this state." To answer the question, the court compared the elements of assault and battery with intent to kill (ABWIK) and the elements of attempted murder. Though the court "declined to recognize a separate offense of attempted murder." "Attempted murder would require the specific intent to kill," and "specific intent means that the defendant consciously intended the completion of acts comprising the attempted offense."

With this history of our courts requiring the State to prove specific intent as an element of attempt crimes, the Legislature chose to include the phrase "with intent to kill" in section 16-3-29. The Legislature is presumed to know how the terms and phrases it uses in a statute have been interpreted in the past.

The Legislature's use of the phrase "with intent to kill," considered in light of our courts' prior rulings that specific intent is required for attempt crimesparticularly the supreme court's statement in Sutton, "Attempted murder would require the specific intent to kill" indicates the Legislature intended to require the State to prove the specific intent to kill as an element of attempted murder.

The State argues, however, the Legislature intended to codify the common law crime of ABWIK [Assault and Battery With Intent to Kill] when it enacted section 16-3-29, and because a specific intent to kill was not an element of ABWIK, the Legislature did not intend to require a specific intent to kill as an element of attempted murder. To support its argument that section 16-3-29 is a codification of ABWIK, the State points to the following language in the Omnibus Crime Reduction and Sentencing Reform Act: "The common law offenses of [ABWIK and others] are abolished," and, "[W]herever in the 1976 Code reference is made to [ABWIK], it means attempted murder as defined in Section 16-3-29."

We disagree with the State's argument. We find the Legislature intended to require the State to prove specific intent to commit murder as an element of attempted murder, and therefore the trial court erred by charging the jury that attempted murder is a general intent crime.

The State contends the trial court's errors did not prejudice King and were harmless beyond a reasonable doubt. Whether an error is harmless depends on the circumstances of the particular case. No definite rule of law governs this finding; rather, the materiality and prejudicial character of the error must be determined from its relationship to the entire case. Error is harmless when it could not reasonably have affected the result of the trial. Engaging in this harmless error analysis, we question whether beyond a reasonable doubt the trial error did not contribute to the guilty verdict.

We find the trial court's errors prejudiced King as to his attempted murder conviction, affected the result of his trial on that charge, and thus were not harmless beyond a reasonable doubt. One of the key issues at trial was whether King continued to shoot at Brown after they exited the cab. Brown testified "six or seven" shots were fired, all but one of which were fired outside the cab. However, there are specific facts in this case that could lead a jury to find King fired only one shot. In particular, Brown was dispatched to Carlton Street at 4:11 A.M. He testified it took him "a minute, two minutes " to get there. Officer Butler testified she arrived on the scene at 4:21 A.M. Officers searched the area for hours and found only one shell casing. Under these circumstances, it seems highly unlikely King could have robbed and shot Brown in the cab, chased him down Carlton Street while shooting at him, and then retrieved all the shell casings in the dark before Officer Butler arrived.

Brown's testimony that he repeatedly pushed King's gun away supports the inference that when King shot Brown in the cab, he did so in a struggle and did not intend to kill Brown. It is more difficult to imagine, however, that King could have chased Brown down Carlton Street while shooting at him unless he specifically intended to kill Brown. Thus, the State presented a stronger case for attempted murder from the shots fired during the chase. These circumstances made Officer Butler's testimony as to the number of shots fired critical to the State's ability to prove King continued to shoot at Brown after they exited the cab, and thus made her testimony important to the State's ability to prove King guilty of attempted murder.

Therefore, we find Officer Butler's inadmissible testimony as to the number of shots King fired affected the jury's verdict on attempted murder, and we cannot say that either the admission of the evidence or the erroneous jury charge are harmless beyond a reasonable doubt.

We find the trial court erred in charging the jury that a specific intent to kill is not an element of attempted murder and in admitting Officer Butler's hearsay testimony. Because we find these errors prejudiced King as to his conviction for attempted murder, we reverse and remand for a new trial.

Questions

a. List all the facts relevant to deciding Rakeem King's state of mind regarding attempted murder.

b. The trial judge instructed the jury that, "A specific intent to kill is not an element of attempted murder but it must be a general intent to commit serious bodily harm." Why did the Court of Appeals rule that the instruction was reversible error?

c. Should attempted murder require the specific intent to kill?

3. George Lee Mims, Sr. v. U.S. (1967)

George Lee Mims, Sr. was prosecuted for an attempt to enter the Madeira Beach Bank with intent to rob it by force and violence and by intimidation. The United States District Court for the Middle District of Florida entered a judgment of conviction, and Mims appealed. The Court of Appeals reversed and sent the case back for retrial.

George Lee Mims, Sr. {Appellant) was a middleaged mechanic who had been employed at the municipal garage in Treasure Island, Florida, near Madeira Beach, for several years prior to the incidents here involved. His wife died in March, 1962, leaving him with two children by their marriage. One of them was George Lee Mims, Jr., 13 years of age, and the other was a daughter several years older. Within less than 60 days after the death of his wife, he and a married woman with two children had agreed to marry each other if she could persuade her husband to get a divorce. There was some delay about the divorce, and she moved into appellant's house with her children in the middle of June, and continued to live there with him without benefit of clergy until they married shortly before the trial in the following year.

The additions to the appellant's household brought on financial difficulties, even though he was moonlighting on a filling station job three evenings a week and was handling a little repair work on his friends' personal cars on some weekends. He was also having some serious problems with his children. The nature of them was not disclosed. He apparently tried to solve his problems by drinking, and during June and July he frequently drank to excess. Some calls to the Madeira Beach Bank prior to June for the purpose of repairing adding machines had given him access to and familiarity with the area of the bank where the money was kept and he began to consider robbing it.

In early June, he implicated Willie Joe Henderson, a 22-year-old Negro with an eleventh grade education who worked under him at the garage. He also involved his son, George Lee Mims, Jr., Dennis O'Connor, a 15-year-old boy who had run away from home and moved into appellant's house, and Stephen O'Connor, 14 years old.

Guns and ammunition were procured, so that at the time of the two trips to the bank each participant was armed with a loaded pistol, a shotgun or a rifle. For disguises, they had coveralls, sailor hats and face masks. Appellant explained to his companions that the advantage of the coveralls was that they could be put on over street clothes and taken off quickly. By virtue of knowledge gained while working on the adding machines in the bank, the appellant gave each of his companions a definite assignment to do while in the bank. He had also concluded that the fewest customers would be in the bank around closing time, so he planned to enter it just before it closed its doors to the public for the day.

The first trip to the bank for the purpose of robbing it was Saturday, July 7th. At that time Thomas Napper was not involved. All the other participants met at the garage where appellant and Henderson worked at a time when it was closed for business that day. They put on their coveralls and disguises, got into a car and drove to the bank, intending to reach there about five minutes before closing time. However, they miscalculated the time, and got there a few minutes after it had closed. When they arrived and saw the situation, they left without making any attempt to go into the bank.

The next visit to the bank was on Wednesday, July 11th. On the previous day, the appellant rented from the King Car Rentals Service in Treasure Island a Ford Galaxie [sic] bearing Florida license plates for use in going to and from the bank. Before going to the bank he put some stolen out-of-state license plates over the Florida plates. He also rented an apartment with a private garage in an area that could be reached quickly after leaving the bank. The rented car was put in the garage at the apartment on July 10th and left there until it was used for transportation to the bank. The plan was that the participants could come to the apartment in their own cars, put on their disguises there, go to the bank in the rented car, rob the bank and return to the apartment before police began to watch the cars on the streets, shed their disguises, hide the getaway car, guns and disguises in the apartment and garage, and then leave in their regular clothes in small groups in the other cars.

Willie Joe Henderson brought his cousin, Thomas Napper, to the apartment and had him included in the group that was to rob the bank. The appellant was under the influence of whiskey when he appeared that day, and brought two bottles of whiskey with him. When all the parties had put on their disguises and were ready to go, appellant suggested to them that a drink of whiskey would settle their nerves. Some of them took a drink. They drove to the bank parking lot in the rented car, and sent Henderson around to see if the bank was still open. It was, but he was getting reluctant to go through with the robbery and went back and told them the bank was closed. They knew that he had been wavering, and began to doubt his statement after a few minutes; so all of them went around to the bank entrance with intention to go in and commit the robbery, if the bank was still open.

The proof indicates that they had no more intention of forcing their way in if the bank was closed, than they had when they went to the bank on the preceding Saturday. By the time they got to the entrance, the bank had actually closed for the day. A Mrs. Barkiewicz was at the door shaking it to attract the attention of one of the bank employees to get him to let her in to correct an error in a deposit she had made a few minutes before closing time. One of the boys placed the muzzle of his pistol at the side of her head, and another one told her that they were going to rob the bank. She thought it was a prank. When she replied that it was too late, as the bank had already closed, one of appellant's party said, "Let's get out of here" and they ran back to their car and fled.

The court instructed the jury that they need not spend any time debating as to whether or not an attempt was made to rob the bank, as the evidence showed such attempt as a matter of law. Counsel for the appellant did not object to that instruction, even though he had indicated in his opening statement at the beginning of the trial that the charge would be contested ... on the ground "that there was never a valid attempt, an actual attempt to commit the crime as alleged .... " The instruction was so peremptory in nature that the error must be noticed without an objection having been made.

The appellant was entitled to have the question of whether there was an attempt to enter the bank for the purpose of robbing it submitted to the jury under appropriate instructions covering, among other things, for determining whether the conduct of the participants had gone beyond the intent and preparation stage and had reached the point where an overt act had been committed directly tending to effect the commission of the substantive offense.

Much ink has been spilt in an attempt to arrive at a satisfactory standard for telling where preparations ends and attempt begins, but the tests adopted in the various jurisdictions fall somewhere between the two extremes represented respectively by the old common law guide and the one suggested by the Model Penal Code of the American Law Institute. The question has not been decided by this Court; but, in the event of another trial, help can be obtained from the few federal cases on it.

The Buffum case states a test that has been frequently approved:

Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature.

The Gregg case approves that test laid down by Cardozo, Jr., ... [that] the act must "carry the project forward within dangerous proximity to the criminal end to be attained."

The Coplon case quoted with approval the following from the opinion of Holmes, J., in the Peaslee case, Preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor, although there is still the need of a further exertion of the will to complete the crime.

In discussing the same question in the Kennedy case, Holmes, J., said: "Every question of proximity must be determined by its own circumstances, and analogy is too imperfect to give much help."

The conviction ... is reversed and remanded.

Questions

a. List all of the facts and circumstances relevant to deciding whether George Lee Mims Sr. attempted to rob the bank.

b. Assume you're the prosecutor. On the facts and circumstances available from the excerpt, argue that the case went far enough beyond preparation to satisfy the actus reus element. c. Now, assume you 're the defense attorney. On the facts and circumstances available from the excerpt, argue that the case went no further than preparation.

d. Now, you be the judge. Write an opinion deciding the case, relying on your answers to 2 and 3.

4. State v. Damms (1960)

The defendant, Ralph Damms, was charged by information [a criminal charge by the prosecutor without a grand jury] with the offense of attempt to commit murder in the first degree. The jury found the defendant guilty as charged, and the defendant was sentenced to imprisonment in the state prison at Waupun for a term of not more than ten years. Damms appealed to the Wisconsin Supreme Court. The Wisconsin Supreme Court affirmed the conviction.

The alleged crime occurred on April 6, 1959, near Menomonee Falls in Waukesha County. Prior to that date Marjory Damms, wife of the defendant, had instituted an action for divorce against him and the parties lived apart. She was 39 years old and he 33 years of age. Marjory Damms was also estranged from her mother, Mrs. Laura Grant.

That morning, a little before eight o'clock, Damms drove his automobile to the vicinity in Milwaukee where he knew Mrs. Damms would take the bus to go to work. He saw her walking along the sidewalk, stopped, and induced her to enter the car by falsely stating that Mrs. Grant was ill and dying. They drove to Mrs. Grant's home. Mrs. Damms then discovered that her mother was up and about and not seriously ill. Nevertheless, the two Damms remained there nearly two hours conversing and drinking coffee. Apparently, it was the intention of Damms to induce a reconciliation between mother and daughter, hoping it would result in one between himself and his wife, but not much progress was achieved in such direction.

At the conclusion of the conversation, Mrs. Damms expressed the wish to phone for a taxicab to take her to work. Damms insisted on her getting into his car, and said he would drive her to work. They again entered his car, but instead of driving south toward her place of employment, he drove in the opposite direction. Some conversation was had in which he stated that it was possible for a person to die quickly and not be able to make amends for anything done in the past, and he referred to the possibility of "judgment day" occurring suddenly.

Mrs. Damms' testimony as to what then took place is as follows: "When he was telling me about this being judgment day, he pulled a cardboard box from under the seat of the car and brought it up to the seat and opened it up and took a gun out of a paper bag. He aimed it at my side and he said, 'This is to show you I'm not kidding.' I tried to quiet him down. He said he wasn't fooling. I said if it was just a matter of my saying to my mother that everything was all right, we could go back and I would tell her that."

They did return to Mrs. Grant's home and Mrs. Damms went inside and Damms stayed outside. In a few minutes he went inside and asked Mrs. Damms to leave with him. Mrs. Grant requested that they leave quietly so as not to attract the attention of the neighbors. They again got into the car, and this time drove out on Highway 41 toward Menomonee Falls. Damms stated to Mrs. Damms that he was taking her "up north" for a few days, the apparent purpose of which was to effect a reconciliation between them.

As they approached a roadside restaurant, he asked her if she would like something to eat. She replied that she wasn't hungry but would drink some coffee. Damms then drove the car off the highway beside the restaurant and parked it with the front facing, and in close proximity to, the restaurant wall.

Damms then asked Mrs. Damms how much money she had with her and she said "a couple of dollars." He then requested to see her checkbook and she refused to give it to him. A quarrel ensued between them. Mrs. Damms opened the car door and started to run around the restaurant building screaming, "Help!" Damms pursued her with the pistol in his hand.

Mrs. Damms's cries for help attracted the attention of the persons inside the restaurant, including two officers of the state traffic patrol who were eating their lunch. One officer rushed out of the front door and the other the rear door. In the meantime, Mrs. Damms had run nearly around three sides of the building. In seeking to avoid colliding with a child, who was in her path, she turned, slipped, and fell. Damms crouched down, held the pistol at her head, and pulled the trigger, but nothing happened. He then exclaimed, "It won't fire. It won't fire."

Damms testified that at the time he pulled the trigger the gun was pointing down at the ground and not at Mrs. Damms's head. However, the two traffic patrol officers both testified that Damms had the gun pointed directly at her head when he pulled the trigger. The officers placed Damms under arrest. They found that the pistol was unloaded. The clip holding the cartridges, which is inserted in the butt of the gun to load it, was later found in the cardboard box in Damms's car together with a box of cartridges.

That afternoon, Damms was questioned by a deputy sheriff at the Waukesha county jail, and a clerk in the sheriff's office typed out the questions and Damms's answers as they were given. Damms later read over such typed statement of questions and answers, but refused to sign it. In such statement Damms stated that he thought the gun was loaded at the time of the alleged attempt to murder. Both the deputy sheriff and the undersheriff testified that Damms had stated to them that he thought the gun was loaded. To the contrary, though, Damms testified at the trial that he knew at the time of the alleged attempt that the pistol was not loaded.

The two questions raised on this appeal are:

1. Did the fact that it was impossible for the accused to have committed the act of murder because the gun was unloaded preclude his conviction of the offense of attempt to commit murder?

2. Assuming that the foregoing question is answered in the negative, does the evidence establish the guilt of the accused beyond a reasonable doubt?

Sec. 939.32(2), Stats., provides as follows:

An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor. [emphasis added, see definition on p. 294]

The issue with respect to the first of the aforestated two questions boils down to whether the impossibility of accomplishment due to the gun being unloaded falls within the statutory words "except for the intervention of some other extraneous factor." We conclude that it does.

An article in 1956 Wisconsin Law Review, by Assistant Attorney General Platz, points out that "attempt" [in the Wisconsin statute] is more intelligible fashion than using such tests as "beyond mere preparation," the place at which the actor may repent and withdraw, or "dangerous proximity to success." Quoting the author:

Emphasis upon the dangerous propensities of the actor as shown by his conduct, rather than upon how close he came to succeeding, is more appropriate to the purposes of the criminal law to protect society and reform offenders or render them temporarily harmless.

Sound public policy would seem to support the majority view that impossibility not apparent to the actor should not absolve him from the offense of attempt to commit the crime he intended. An unequivocal act accompanied by intent should be sufficient to constitute a criminal attempt. Insofar as the actor knows, he has done everything necessary to insure the commission of the crime intended, and he should not escape punishment because of the fortuitous circumstance that by reason of some fact unknown to him it was impossible to effectuate the intended result.

It is our considered judgment that the fact that the gun was unloaded when Damms pointed it at his wife's head and pulled the trigger did not absolve him of the offense charged, if he actually thought at the time that it was loaded.

We do not believe that the further contention raised in behalf of the accused, that the evidence does not establish his guilt of the crime charged beyond a reasonable doubt, requires extensive consideration on our part.

The jury undoubtedly believed the testimony of the deputy sheriff and undersheriff that Damms told them on the day of the act that he thought the gun was loaded. This is also substantiated by the written statement constituting a transcript of his answers given in his interrogation at the county jail on the same day.

The gun itself, which is an exhibit in the record, is the strongest piece of evidence in favor of Damms's present contention that he at all times knew the gun was unloaded. Practically the entire bottom end of the butt of the pistol is open. Such opening is caused by the absence of the clip into which the cartridges must be inserted in order to load the pistol. This readily demonstrates to anyone looking at the gun that it could not be loaded. Because the unloaded gun with this large opening in the butt was an exhibit which went to the jury room, we must assume that the jury examined the gun and duly considered it in arriving at their verdict.

We are not prepared to hold that the jury could not come to the reasonable conclusion that, because of Damms's condition of excitement when he grabbed the gun and pursued his wife, he so grasped it as not to see the opening in the end of the butt which would have unmistakably informed him that the gun was unloaded. Having so concluded, they could rightfully disregard Damms's testimony given at the trial that he knew the pistol was unloaded.

Judgment affirmed.

I disagree with the majority opinion in respect to their interpretations and conclusions of sec. 939.32(2), Stats. The issue raised on this appeal: Could the defendant be convicted of murder, under sec. 939.32(2), Stats., when it was impossible for the defendant to have caused the death of anyone because the gun or pistol involved was unloaded? Sec. 939.32(2), Stats., provides:

An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor. [emphasis added]

In view of the statute, the question arising under sec. 939.32(2), is whether the impossibility of accomplishment due to the pistol being unloaded falls within the statutory words "except for the intervention of ... or some other extraneous factor." It does not.

In interpreting the statute we must look to the ordinary meaning of words. Webster's New International Dictionary defines "extraneous" as not belonging to or dependent upon a thing, originated or coming from without. The plain distinct meaning of the statute is: A person must form an intent to commit a particular crime and this intent must be coupled with sufficient preparation on his part and with overt acts from which it can be determined clearly, surely and absolutely the crime would be committed except for the intervention of some independent thing or something originating or coming from someone or something over which the actor has no control.

intent to kill someone, had in his possession a loaded pistol, pulled the trigger while his intended victim was within range and the pistol did not fire because the bullet or cartridge in the chamber was defective or because someone unknown to the actor had removed the cartridges or bullets or because of any other thing happening which happening or thing was beyond the control of the actor, the actor could be guilty under sec. 339.32(2), Stats.

But when as in the present case (as disclosed by the testimony) the defendant had never loaded the pistol, although having ample opportunity to do so, then he had never completed performance of the act essential to kill someone, through the means of pulling the trigger of the pistol. This act, of loading the pistol, or using a loaded pistol, was dependent on the defendant himself. It was in no way an extraneous factor since by definition an extraneous factor is one which originates or comes from without.

Under the majority opinion the interpretations of the statute are if a person points an unloaded gun {pistol) at someone, knowing it to be unloaded and pulls the trigger, he can be found guilty of an attempt to commit murder. This type of reasoning I cannot agree with.

He could be guilty of some offense, but not attempt to commit murder. If a person uses a pistol as a bludgeon and had struck someone, but was prevented from killing his victim because he {the actor) suffered a heart attack at that moment, the illness would be an extraneous factor within the statute and the actor could be found guilty of attempt to commit murder, provided the necessary intent was proved.

In this case, there is no doubt that the pistol was not loaded. The defendant testified that it had never been loaded or fired. The following steps must be taken before the weapon would be capable of killing:

1. To load pistol requires pulling of slide operating around barrel toward holder or operator of pistol.

2. After pulling slide to rear, safety latch is pushed into place by operator of pistol to hold pistol in position for loading.

3. A spring lock is located at one side of opening of magazine located at the bottom grip or butt of gun.

4. This spring is pulled back and the clip is inserted into magazine or bottom of pistol and closes the bottom of the grip or butt of the pistol.

5. The recoil or release of the safety latch on the slide loads the chamber of the pistol and it is now ready to fire or be used as a pistol.

The law judges intent objectively. It is impossible to peer into a man's mind particularly long after the act has been committed. Viewing objectively the physical salient facts, it was the defendant who put the gun, clip and cartridges under the car seat. It was he, same defendant, who took the pistol out of the box without taking clip or cartridges. It is plain he told the truth-he knew the gun would not fire; nobody else knew that so well. In fact his exclamation was "It won't fire . It won't fire ."

The real intent showed up objectively in those calm moments while driving around the county with his wife for two hours, making two visits with her at her mother's home, and drinking coffee at the home. He could have loaded the pistol while staying on the outside at his mother-in-law's home on his second trip, if he intended to use the pistol to kill, but he did not do this required act.

The majority states:

The gun itself, which is an exhibit in the record, is the strongest piece of evidence in favor of Damms's present contention that he at all times knew the gun was unloaded. Practically the entire bottom end of the butt of the pistol is open. This readily demonstrates to anyone looking at the gun that it could not be loaded.

They are so correct. The defendant had the pistol in his hand several times before chasing his wife at the restaurant and it was his pistol. He, no doubt, had examined this pistol at various times during his period of ownership-unless he was devoid of all sense of touch and feeling in his hands and fingers it would be impossible for him not to be aware or know that the pistol was unloaded. He could feel the hole in the bottom of the butt, and this on at least two separate occasions for he handled the pistol by taking it out of the box and showing it to his wife before he took her back to her mother's home the second time, and prior to chasing her at the restaurant.

Objective evidence here raises reasonable doubt of intent to attempt murder. It negatives [sic] intent to kill. The defendant would have loaded the pistol had he intended to kill or murder or used it as a bludgeon. The Assistant Attorney General contends and states in his brief:

In the instant case, the failure of the attempt was due to lack of bullets in the gun but a loaded magazine was in the car. If defendant had not been prevented by the intervention of the two police officers, or possibly someone else, or conceivably by the flight of his wife from the scene, he could have returned to the car, loaded the gun, and killed her. Under all the circumstances the jury were justified in concluding that that is what he would have done, but for the intervention.

If that conclusion is correct, and juries are allowed to convict persons based on speculation of what might have been done, we will have seriously and maybe permanently, curtailed the basic rights of our citizenry to be tried only on the basis of proven facts. I cannot agree with his contention or conclusion.

The total inadequacy of the means (in this case the unloaded gun or pistol) in the manner intended to commit the overt act of murder, precludes a finding of guilty of the crime charged under sec. 939.32(2), Stats.

Questions

a. List all the facts relevant to deciding whether Ralph Damms intended to murder Marjory Damms.

b. List all the facts relevant to deciding whether Damms had taken enough steps to attempt to murder Marjory Damms according to the Wisconsin statute.

c. Summarize the majority's arguments that the unloaded gun was an extraneous factor, a stroke of luck Damms shouldn't benefit from.

d. Summarize the dissent's arguments that the unloaded gun wasn't an extraneous factor but an impossibility that prevents Damms from attempting to murder Marjory Damms.

e. In your opinion, is the majority or dissent right ? Explain your answer in terms of what effect impossibility should have on liability for criminal attempt.

f. Should it matter why the gun was unloaded? Explain your answer.

g. What if Damms knew the gun was unloaded? Should he still be guilty of attempted murder? Explain your answer.

h. Is the Wisconsin rule punishing attempts that are about half the actions needed to complete the crime a good idea ? 9. Some states punish attempts at the same level as completed crimes because people bent on committing crimes shouldn't benefit at all from a stroke of luck. Do you agree? Defend your answer with arguments from the case excerpt and the text.

5. Le Barron v. State (1966)

David Le Barron was convicted of attempted rape and sentenced to not more than 15 years in prison. He appealed. The Wisconsin Supreme Court affirmed the conviction.

On March 3, 1965, at 6:55 P.M., the complaining witness, Jodean Randen, a housewife, was walking home across a fairly well-traveled railroad bridge in Eau Claire, Wisconsin. She is a slight woman whose normal weight is 95 to 100 pounds. As she approached the opposite side of the bridge, she passed a man who was walking in the opposite direction.

The man turned and followed her, grabbed her arm, and demanded her purse. She surrendered her purse and at the command of the man began walking away as fast as she could. Upon discovering that the purse was empty, he caught up with her again, grabbed her arm, and told her that if she did not scream he would not hurt her.

He then led her-willingly, she testified, so as to avoid being hurt by him-to the end of the bridge. While walking he shoved her head down and warned her not to look up or do anything and he would not hurt her.

On the other side of the bridge along the railroad tracks there is a coal shack. As they approached the coal shack he grabbed her, put one hand over her mouth, and an arm around her shoulder and told her not to scream or he would kill her. At this time Mrs. Randen thought he had a knife in his hand.

He then forced her into the shack and up against the wall. As she struggled for her breath he said, "You know what else I want," unzipped his pants and started pulling up her skirt. She finally succeeded in removing his hand from her mouth, and after reassuring him that she would not scream, told him she was pregnant and pleaded with him to desist or he would hurt her baby.

He then felt her stomach and took her over to the door of the shack, where in the better light he was able to ascertain that, under her coat, she was wearing maternity clothes. He thereafter let her alone and left after warning her not to scream or call the police, or he would kill her.

The material portions of the controlling statutes provide:

§ 944.01(1), Stats. Any male who has sexual intercourse with a female he knows is not his wife, by force and against her will, may be imprisoned not more than 30 years.

§ 939.32(2), Stats. An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that he formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.

The two statutory requirements of intent and overt acts which must concur in order to have attempt to rape are as follows:

1. The male must have the intent to act so as to have intercourse with the female by overcoming or preventing her utmost resistance by physical violence, or overcoming her will to resist by the use of threats of imminent physical violence likely to cause great bodily harm;

2. the male must act toward the commission of the rape by overt acts which demonstrate unequivocally, under all the circumstances, that he formed the intent to rape and would have committed the rape except for the intervention of another person or some other extraneous factor.

The thrust of defendant's argument, that the evidence was not sufficient to convict him of the crime of attempted rape, is two-fold: first, defendant desisted from his endeavor to have sexual intercourse with complainant before he had an opportunity to form an intent to accomplish such intercourse by force and against her will; and, second, the factor which caused him to desist, viz., the pregnancy of complainant, was intrinsic and not an "extraneous factor" within the meaning of sec. 939.32(2), Stats.

It is difficult to consider the factor of intent ap art from that of overt acts since the sole evidence of intent in attempted rape cases is almost always confined to the overt acts of the accused, and intent must be inferred therefrom. In fact, the express wording of sec. 939 .32(2), Stats. recognizes that this is so.

We consider defendant's overt acts, which support a reasonable inference that he intended to have sexual intercourse with complainant by force and against her will, to be these:

1. He threatened complainant that he would kill her if she refused to cooperate with him;

2. he forced complainant into the shack and against the wall; and

3. he stated, "You know what else I want," unzipped his pants, and started pulling up her skirt. The jury had the right to assume that defendant had the requisite physical strength and weapon (the supposed knife) to carry out the threat over any resistance of complainant.

We conclude that a jury could infer beyond a reasonable doubt from these overt acts of defendant that he intended to have sexual intercourse with defendant by force and against her will. The fact that he desisted from his attempt to have sexual intercourse as a result of the plea of complainant that she was pregnant would permit of the opposite inference. However, such desistance did not compel the drawing of such inference nor compel, as a matter of law, the raising of a reasonable doubt to a finding that defendant had previously intended to carry through with having intercourse by force and against complainant's will. The argument that the pregnancy which caused defendant's desistance does not qualify as an "extraneous factor" is in conflict with our holding in State v. Damms. [See case excerpt under "Legal Impossibility."]

Affirmed.

Questions

a. List all the facts relevant to deciding whether Le Barron had the intent to rape Jodean Randen.

b. At what point, if any, did his acts cross the line from preparation to the actus reus of attempt under Wisconsin law?

c. Describe the details surrounding Le Barron's decision to abandon the attempted rape of Randen.

d. Why did Le Barron abandon his attempt to rape Randen? Because he believed it was morally wrong to rape a pregnant woman? Or did the pregnancy simply repel him sexually? Does it matter? Explain your answer.

e. Is Le Barron equally dangerous, whichever reason led to interrupting the rape? Explain.

f. The court said a jury could have concluded Randen's pregnancy was either an extraneous factor he couldn't benefit from or an intrinsic factor that caused Le Barron to renounce voluntarily his intention to rape. If you were a juror, how would you have voted on whether the pregnancy was an extraneous or an intrinsic factor?

6. Alexander v. U.S. (1993)

Ferris Alexander, Sr. (Defendant, now Petitioner) was convicted in the United States District Court for the District of Minnesota, of tax offenses, obscenity offenses, and Racketeer Influenced and Corrupt Organizations Act (RICO) violations, and he appealed. The Eighth Circuit Court of Appeals affirmed. Certiorari was granted. The Supreme Court remanded. The U.S. District Court, Minnesota reaffirmed after remand. The U.S. Seventh Circuit Court of Appeals affirmed.

After a full criminal trial, petitioner Ferris J. Alexander, owner of more than a dozen stores and theaters dealing in sexually explicit materials, was convicted on 17 obscenity counts and 3 counts of violating the Racketeer Influenced and Corrupt Organizations Act (RICO). The obscenity convictions, based on the jury's findings that four magazines and three videotapes sold at several of petitioner's stores were obscene, served as the predicates for his three RICO convictions.

In addition to imposing a prison term and fine, the District Court ordered petitioner to forfeit, pursuant to 18 U.S.C. § 1963 (1988 ed. and Supp. III), certain assets that were directly related to his racketeering activity as punishment for his RICO violations. Petitioner argues that this forfeiture violated the First and Eighth Amendments to the Constitution. We reject petitioner's claims under the First Amendment but remand for reconsideration of his Eighth Amendment challenge.

Ferris Alexander was in the so-called "adult entertainment" business for more than 30 years, selling pornographic magazines and sexual paraphernalia, showing sexually explicit movies, and eventually selling and renting videotapes of a similar nature. He received shipments of these materials at a warehouse in Minneapolis, Minnesota, where they were wrapped in plastic, priced, and boxed. He then sold his products through some 13 retail stores in several different Minnesota cities, generating millions of dollars in annual revenues. In 1989, federal authorities filed a 41-count indictment against petitioner and others, alleging operation of a racketeering enterprise in violation of RICO. The indictment charged 34 obscenity counts and 3 RICO counts, the racketeering counts being predicated on the obscenity charges. The indictment also charged numerous counts of tax evasion and related offenses that are not relevant to the questions before us.

Following a 4-month jury trial in the United States District Court for the District of Minnesota, petitioner was convicted of 17 substantive obscenity offenses: 12 counts of transporting obscene material in interstate commerce for the purpose of sale or distribution, in violation of 18 U.S.C. § 1465; and 5 counts of engaging in the business of selling obscene material, in violation of 18 U.S.C. § 1466 (1988 ed. and Supp. III).

He also was convicted of 3 RICO offenses that were predicated on the obscenity convictions: one count of receiving and using income derived from a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(a); one count of conducting a RICO enterprise, in violation of§ 1962(c); and one count of conspiring to conduct a RICO enterprise, in violation of§ 1962(d). As a basis for the obscenity and RICO convictions, the jury determined that four magazines and three videotapes were obscene. Multiple copies of these magazines and videos, which graphically depicted a variety of "hard core" sexual acts, were distributed throughout petitioner's adult entertainment empire.

Petitioner was sentenced to a total of six years in prison, fined $100,000, and ordered to pay the cost of prosecution, incarceration, and supervised release. In addition to these punishments, the District Court reconvened the same jury and conducted a forfeiture proceeding pursuant to § 1963(a)(2). At this proceeding, the Government sought forfeiture of the businesses and real estate that represented petitioner's interest in the racketeering enterprise, § 1963(a)(2) (A), the property that afforded petitioner influence over that enterprise, § 1963(a)(2)(D), and the assets and proceeds petitioner had obtained from his racketeering offenses,§§ 1963(a)(l), (3).

The jury found that petitioner had an interest in 10 pieces of commercial real estate and 31 current or former businesses, all of which had been used to conduct his racketeering enterprise. Sitting without the jury, the District Court then found that petitioner had acquired a variety of assets as a result of his racketeering activities. The court ultimately ordered petitioner to forfeit his wholesale and retail businesses (including all the assets of those businesses) and almost $9 million in moneys acquired through racketeering activity. Not wishing to go into the business of selling pornographic materials-regardless of whether they were legally obscene-the Government decided that it would be better to destroy the forfeited expressive materials than sell them to members of the public.

Petitioner also argues that the forfeiture order in this case--considered atop his 6-year prison term and $100,000 fine-is disproportionate to the gravity of his offenses and therefore violates the Eighth Amendment, either as a "cruel and unusual punishment" or as an "excessive fine." The Court of Appeals, though, failed to distinguish between these two components of petitioner's Eighth Amendment challenge. Instead, the court lumped the two together, disposing of them both with the general statement that the Eighth Amendment does not require any proportionality review of a sentence less than life imprisonment without the possibility of parole. But that statement has relevance only to the Eighth Amendment's prohibition against cruel and unusual punishments. Unlike the Cruel and Unusual Punishments Clause, which is concerned with matters such as the duration or conditions of confinement, "[t]he Excessive Fines Clause limits the government's power to extract payments, whether in cash or in kind, as punishment for some offense." The criminal forfeiture at issue here is clearly a form of monetary punishment no different, for Eighth Amendment purposes, from a traditional "fine." Accordingly, the forfeiture in this case should be analyzed under the Excessive Fines Clause.

Petitioner contends that forfeiture of his entire business was an "excessive" penalty for the Government to exact " [ o ]n the basis of a few materials the jury ultimately decided were obscene." It is somewhat misleading, we think, to characterize the racketeering crimes for which petitioner was convicted as involving just a few materials ultimately found to be obscene.

Petitioner was convicted of creating and managing what the District Court described as "an enormous racketeering enterprise." It is in the light of the extensive criminal activities which petitioner apparently conducted through this racketeering enterprise over a substantial period of time that the question whether the forfeiture was "excessive" must be considered. We think it preferable that this question be addressed by the Court of Appeals in the first instance.

For these reasons, we hold that the Court of Appeals should have considered whether they resulted in an "excessive" penalty within the meaning of the Eighth Amendment's Excessive Fines Clause. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Questions

a. List all of the specific items in the forfeiture.

b. Summarize Ferris Alexander Sr.'s arguments that the forfeiture was an excessive fine.

c. Summarize the U.S. Supreme Court's arguments supporting the forfeiture .

d. Do you think the forfeiture was excessive?