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Marc Burrell (defendant) was convicted of manslaughter after a jury trial in the Superior Court. Burrell appealed, arguing that the trial court committed an error in its jury instruction concerning the requirement under a New Hampshire statute that provides that conduct creating criminal liability must include a voluntary act. The New Hampshire Supreme Court affirmed the Superior Court.

Douglas Saari and Joey Baglione made plans to have a few drinks at Baglione's house. Before going there, Saari, a minor, stopped at Burrell's house and asked Burrell to purchase beer. Burrell agreed and decided to accompany Saari to Baglione's. When they arrived, Baglione answered the door holding a .357 revolver. Inside the house were an AR-15 rifle, possibly a shotgun, a .44 revolver, and a .38 snub-nose revolver. The .357 and .44 revolvers were loaded.

During the afternoon the three drank beer and watched an X-rated movie. Baglione and Burrell played a form of Russian roulette with the .357 revolver. One bullet was placed in the chamber, the chamber was spun, one player placed the gun to his head with his finger on the trigger, and then the gun was examined to see whether the bullet would have been discharged if the trigger had been pulled. At some point in the afternoon, all three went out on Baglione's back porch and fired one or two rounds with the .44 revolver.

At trial, Saari testified that while Baglione was out of the room, Saari told Burrell that he was going to steal the .38 and placed it in the lining of his leather jacket. Burrell agreed to go along with Saari, and stated that he was going to steal the AR-15, the .44, and the .357. When Baglione returned, Burrell announced his intention to steal the weapons. Baglione said, "You're not going to steal those guns, so I'll stop you." Baglione ran out of the room, and returned with a shotgun. By then, Burrell had put down the AR-15, but kept the .44 in his belt and the .357 in his hand.

Saari testified that Baglione "came running out of the basement ... and told [Burrell], ... 'You 're not going to steal those guns because I'll blow your f ___ head off."' Saari added that Baglione was not "serious .. . [and] he pumped the shotgun more than once, so I know it wasn't loaded." Saari then "looked at Burrell to see what his response was. And before I had time to do anything, he had shot in Baglione's direction" and hit him. Burrell dropped the gun, tried to call an ambulance, but panicked and went outside. At that time, Baglione's brother-in-law, Greg Eastman, arrived and called the ambulance. After the ambulance arrived, Eastman, Saari and Burrell went to the hospital.

At trial, Burrell testified that the fatal shooting did not occur when Baglione threatened him, but later in the afternoon while he and Baglione were preparing to take some of the guns back to a closet in Baglione's father's bedroom. Before storing the guns, Baglione told Burrell that his father always kept the .357 loaded.

Burrell testified that, after loading the .357 revolver, he was seated on the forward edge of the love seat with his feet outstretched. Baglione passed in front of him from right to left. While Baglione was to his left, he sighted the gun on the hearth and put his finger on the trigger. He heard a noise and saw Baglione move from left to right in front of him. Thinking that they were going to collide, he jerked back and the gun went off. Burrell admitted on cross-examination that because of a lazy left eye, a problem he was aware of on the day of the shooting, he had great difficulty seeing anything to his left.

In New Hampshire, "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 626: 1, I. Burrell does not dispute either the statutory requirement or the fundamental principle that criminal liability must be predicated upon conduct that includes a voluntary act. Burrell, however, contends that the court erred in failing to instruct the jury that it must find that Burrell's act of pulling the trigger was voluntary.

The trial court gave the jury the following instruction on the voluntary act requirement: A person is not guilty of an offense unless his criminal liability is based upon conduct that includes a voluntary act. A voluntary act is defined as conduct which is performed consciously as a result of effort or determination. To find Burrell guilty of an offense, any offense, you must find that the criminal liability is based upon conduct that includes a voluntary act. And although a voluntary act is an absolute requirement for criminal liability, you do not have to find that every single act in the circumstances presented to you was voluntary. It is sufficient to satisfy the requirement of a voluntary act if you find that Burrell's conduct causing the death of Joseph Baglione, Jr. included a voluntary act.

Burrell requested this instruction: A person is not guilty of an offense unless his criminal liability is based on conduct that includes a voluntary act. If you find Burrell's act of pulling the trigger of the handgun in this case not to have been a voluntary act, then you must find Burrell not guilty.

Burrell essentially asks this court to require the State to prove that Burrell's last act was voluntary in order to establish criminal liability. There is no support for this proposition in either the statute or in our case law. The statute only requires that Burrell's conduct that gives rise to criminal liability include a voluntary act. Although a voluntary act is absolutely necessary for criminal liability, there is no requirement that every act preceding the actual commission of the offense be voluntary. We hold that the trial court's refusal to instruct the jury that Burrell's act of pulling the trigger must have been a voluntary act was not error. Affirmed.

1. State the facts relevant to deciding whether Marc Burrell "voluntarily" shot Joey Baglione.

2. State the court's definition of "voluntary act."

3. Summarize the court's reasons for holding that the trial judge wasn't required to give the jury instruction that Burrell asked for.

4. In your opinion, which is the better rule for determining whether an act is voluntary: (a) the last act has to be voluntary or (b) that conduct has to include a voluntary act? Defend your answer.

Acie Terry Moore was convicted of second-degree murder, and sentenced to the trial court sentenced defendant to a presumptive-range term of 146 to 185 months imprisonment. Moore appealed, arguing that the trial court should have instructed the jury on the defense of unconsciousness.

At about 9:00 P.M., Terry Moore was driving south on a two-lane paved road in Alamance County with a 50-mileper-hour speed limit. At the same time, Mark McKinney was driving his truck north on the same road. Anthony Satterfield was riding a motorcycle directly behind Mr. McKinney's truck. Mr. Satterfield was followed by two more vehicles, one driven by Michael Rea and the second by Phillip Hagerman.

As defendant's truck approached Mr. McKinney's truck, Moore's truck crossed the double yellow center line into the wrong lane of travel. Mr. McKinney jerked the wheel of his truck to avoid colliding with defendant's truck. Defendant's truck, still in the wrong lane of travel, then struck Mr. Satterfield's motorcycle without braking. During the collision, the tire of defendant's truck severed Mr. Satterfield's leg, the driver's side mirror on defendant's truck collided with Mr. Satterfield's helmet causing a large laceration on his forehead, and defendant's truck smashed the crank case on the motorcycle. Mr. Satterfield's body travelled approximately 100 feet before coming to rest.

After striking the motorcycle, defendant still did not brake, and his truck remained in the wrong lane of travel. Mr. Rea swerved his truck to the right to avoid colliding with defendant's truck. Defendant's truck travelled another 151 feet and then, again without braking, slammed into Mr. Hagerman's truck, snapping the rear axle of that truck and spinning the truck into a ditch. The left front tire of defendant's truck then deflated, and defendant's truck continued travelling for 168 feet off the highway into a field.

At trial, Moore's physician, Dr. Meindert Albert Niemeyer, testified as an expert in family medicine. According to Dr. Niemeyer, defendant has diabetes and a history of seizures and it was possible that hypoglycemia would cause a person like defendant to lose consciousness. He further testified that defendant's diabetes and low blood sugar could cause a state of "ketosis" in which defendant's body would produce "ketones" that can smell like alcohol.

Defendant's sister testified that when defendant does not "have good control over his diabetes," he gets disoriented and confused. She further testified that defendant has a history of seizures that caused him to "black out and stay out for a couple of minutes and then when he would come to he wouldn't know where he was at." On the night of the accident, defendant's sister was worried that defendant might have high blood glucose because he was acting tired and confused and had not eaten since early morning. Defendant's sister did not smell alcohol on defendant when he met her at the go cart track, and she would not have let defendant drive if she believed he had been drinking.

Defendant testified in his own defense, telling the jury that during the day on 14 August 2010, he mowed several lawns. Defendant ate breakfast early that morning, but did not eat anything for the remainder of the day. Although Trooper Norton testified that defendant told him on the night of the accident that he had taken his diabetes medication at about 5:30 A.M., defendant testified that he forgot to take his diabetes medication that morning. According to defendant, he drank a small amount of water and several sodas during the day. He also drank three 12- or 16-ounce beers at a friend's house that evening before driving to the go-cart track.

The absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability. Other courts have recognized "diabetic shock" and "epileptic black-outs" as sources of unconsciousness giving rise to the defense. Evidence showing that the defendant was unconscious during commission of the crime only as a result of voluntary ingestion of alcohol or drugs will not warrant an instruction on the defense of unconsciousness. However, evidence of a defendant's voluntary consumption of alcohol does not render the defense of unconsciousness unavailable where there is additional evidence from which the jury could find the defendant's unconsciousness was caused solely by something other than the voluntary consumption of alcohol.

Here, Dr. Niemeyer, defendant's physician, testified that defendant is diabetic and has a history of seizures and that it is possible that defendant could pass out from hypoglycemia resulting from not taking diabetes medication, not eating during the day, not hydrating enough, and working outside during August temperatures. He further testified that defendant's diabetes and low blood sugar could cause defendant's body to produce "ketones" which can smell like alcohol. Defendant's sister testified that when defendant had a seizure, defendant would "black out" for a couple of minutes and be disoriented and forgetful. Defendant's sister explained in addition that when defendant "didn't have good control over his diabetes," defendant also became disoriented and forgetful.

Defendant testified that he forgot to take his diabetes medication on the day of the accident and ate breakfast early that morning but ate nothing else that day. The evidence showed that the accident occurred about 9:00 P.M. Defendant further testified that he mowed several yards that day, drank only a small amount of water and "a couple" sodas, and experienced nausea and a "burning sensation" in his eyes before the accident.

Regarding the accident, defendant testified that he "blacked out" and explained: I remember going into the curve and it just like something just blanket over my head and I couldn't see nothing .... [A]II I heard was something go bang, bang, bang. That's all I could hear but I couldn't see nothing. Defendant also repeatedly testified that he was not drunk at the time of the accident.

Thus, taken in the light most favorable to defendant, the evidence permitted the jury to find that defendant was unconscious during the accident solely because of a hypoglycemic state, seizure disorder, or some combination of the two, and not as a result of his voluntary consumption of alcohol. The trial court, therefore, erred in failing to give an instruction on unconsciousness.

The State presented substantial evidence that defendant's voluntary intoxication caused defendant's mental state at the time of the accident. The State's evidence indicated that defendant had three to four beers in the middle of the afternoon at a bar. When he returned to the bar in the early evening, approximately two and a half hours prior to the collision, two witnesses saw defendant so intoxicated that he walked into a wall. When he got inside the bar, he fell off a bar stool. At the Alamance County Detention Center, on the night of the accident, defendant told the investigating officer that he was a "nine" on an intoxication scale of one to 10, with 10 being "completely drunk." Further, defendant performed poorly on four field sobriety tests and, in the investigating officer's opinion, defendant's physical and mental faculties were appreciably impaired by alcohol. Three other law enforcement officers and four civilian witnesses at the scene also observed defendant display signs of intoxication and many smelled an odor of alcohol on defendant. Defendant himself admitted drinking three 12- to 16-ounce beers that night.

Finally, chemical analysis showed that defendant had .18 grams of alcohol per 210 liters of breath at the time of the accident-a fact not explained by defendant's evidence. And, at trial, defendant testified: "Everybody drinks and drives. I was the one that just got caught."

Given this evidence, we cannot conclude that the jury would probably have reached a different verdict if properly instructed regarding the defense of unconsciousness. No error.

Questions

1. List all the facts relevant to deciding whether Acie Terry Moore was conscious when he killed Anthony Satterfield.

2. If you were the prosecutor would you have decided to charge Moore with murder? Was the trial court right to refuse to instruct the jury on unconsciousness due to insulin shock? Defend your answer.

3. Assuming Moore was guilty, was the 12 to 15 year sentence proportionate to his crime? Defend your answer.

Walter and Helen Pestinikas were convicted of third-degree murder in the Court of Common Pleas, Criminal Division, Lackawanna County. Each was sentenced to serve not less than five years or more than ten years in prison. Defendants appealed. The Superior Court, Nos. 375 and 395 Philadelphia 1989, affirmed.

Joseph Kly met Walter and Helen Pestinikas in the latter part of 1981 when Kly consulted them about pre-arranging his funeral. In March 1982, Kly, who had been living with a stepson, was hospitalized and diagnosed as suffering from Zenker's diverticulum, a weakness in the walls of the esophagus, which caused him to have trouble swallowing food. In the hospital, Kly was given food, which he was able to swallow and, as a result, regained some of the weight that he had lost.

When he was about to be discharged, he expressed a desire not to return to his stepson's home and sent word to the Pestinikases that he wanted to speak with them. As a consequence, arrangements were made for the Pestinikases to care for Kly in their home on Main Street in Scranton, Lackawanna County.

Kly was discharged from the hospital on April 12, 1982. When the Pestinikases came for him on that day they were instructed by medical personnel regarding the care that was required for Kly and were given a prescription to have filled for him. Arrangements were also made for a visiting nurse to come to the Pestinikases' home to administer vitamin B-12 supplements to Kl y. The Pestinikases agreed orally to follow the medical instructions and to supply Kly with food, shelter, care, and the medicine he required.

The prescription was never filled, and the Pestinikases told the visiting nurse that Kly did not want the vitamin supplement shots and that her services, therefore, were not required. Instead of giving Kly a room in their home, the Pestinikases removed him to a rural part of Lackawanna County, where they placed him in the enclosed porch of a building, which they owned, known as the Stage Coach Inn. This porch was approximately 9 feet by 30 feet, with no insulation, no refrigeration, no bathroom, no sink, and no telephone. The walls contained cracks that exposed the room to outside weather conditions.

Kly's predicament was compounded by the Pestinikases' affirmative efforts to conceal his whereabouts. Thus, they gave misleading information in response to inquiries, telling members of Kly's family that they did not know where he had gone and others that he was living in their home.

After Kly was discharged from the hospital, the Pestinikases took Kly to the bank and had their names added to his savings account. Later, Kly's money was transferred into an account in the names of Kly or Helen Pestinikas, pursuant to which moneys could be withdrawn without Kly's signature. Bank records reveal that from May 1982, to July 1983, the Pestinikases withdrew amounts roughly consistent with the $300 per month Kly had agreed to pay for his care.

Beginning in August 1983, and continuing until Kly's death in November 1984, however, the Pestinikases withdrew much larger sums so that when Kly died, a balance of only $55 remained. In the interim, the Pestinikases had withdrawn in excess of $30,000.

On the afternoon of November 15, 1984, when police and an ambulance crew arrived in response to a call by the Pestinikases, Kly's dead body appeared emaciated, with his ribs and sternum greatly pronounced. Mrs. Pestinikas told police that she and her husband had taken care of Kly for $300 per month and that she had given him cookies and orange juice at 11 :30 A.M. on the morning of his death.

A subsequent autopsy, however, revealed that Kly had been dead at that time and may have been dead for as many as 39 hours before his body was found. The cause of death was determined to be starvation and dehydration. Expert testimony opined that Kly would have experienced pain and suffering over a long period of time before he died.

At trial, the Commonwealth contended that after contracting orally to provide food, shelter, care, and necessary medicine for Kly, the Pestinikases engaged in a course of conduct calculated to deprive Kly of those things necessary to maintain life and thereby cause his death.

The trial court instructed the jury that the Pestinikases could not be found guilty of a malicious killing for failing to provide food, shelter, and necessary medicines to Kly unless a duty to do so had been imposed upon them by contract. The Court instructed the jury as follows: In order for you to convict the defendants on any of the homicide charges or the criminal conspiracy or recklessly endangering charges, you must first find beyond a reasonable doubt that the defendants had a legal duty of care to Joseph Kly. There are but two situations in which Pennsylvania law imposes criminal liability for the failure to perform an act. One of these is where the express language of the law defining the offense provides for criminal [liability] based upon such a failure. The other is where the law otherwise imposes a duty to act. Unless you find beyond a reasonable doubt that an oral contract imposed a duty to act upon Walter and Helen Pestinikas, you must acquit the defendants.

The Pestinikases contend that this instruction was error. The applicable law appears at 18 Pa. C.S. § 30l(a) and (b) as follows: (a) General rule. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. (b) Omission as basis of liability. Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: 115 (1) the omission is expressly made sufficient by the law defining the offense; or (2) a duty to perform the omitted act is otherwise imposed by law.

Unless the omission is expressly made sufficient by the law defining the offense, a duty to perform the omitted act must have been otherwise imposed by law for the omission to have the same standing as a voluntary act for purposes of liability. It should, of course, suffice, as the courts now hold, that the duty arises under some branch of the civil law. If it does, this minimal requirement is satisfied, though whether the omission constitutes an offense depends as well on many other factors.

Consistent with this legal thinking, we hold that when the statute provides that an omission to do an act can be the basis for criminal liability if a duty to perform the omitted act has been imposed by law, the legislature intended to distinguish between a legal duty to act and merely a moral duty to act.

A duty to act imposed by contract is legally enforceable and, therefore, creates a legal duty. It follows that a failure to perform a duty imposed by contract may be the basis for a charge of criminal homicide if such failure causes the death of another person and all other elements of the offense are present. Because there was evidence in the instant case that Kly's death had been caused by the Pestinikases' failure to provide the food and medical care which they had agreed by oral contract to provide for him, their omission to act was sufficient to support a conviction for criminal homicide. The Pestinikases argue that, in any event, the Commonwealth failed to prove an enforceable contract requiring them to provide Kly with food and medical attention. It is their position that their contract with Kly required them to provide only a place for Kly to live and a funeral upon his death. This obligation, they contend, was fulfilled.

Although we have not been provided with a full and complete record of the trial, it seems readily apparent from the partial record before us that the evidence was sufficient to create an issue of fact for the jury to resolve. The issue was submitted to the jury on careful instructions by the learned trial judge and does not present a basis entitling the Pestinikases to post-trial relief. Affirmed.

The theory of the Commonwealth at trial was that the failure of the Pestinikases to fulfill the alleged civil contract to provide food, shelter, personal, and medical care to Mr. Kly was alone sufficient to support a finding of first and/or third degree murder. Section 301(6)(2) of the Crimes Code provides, in relevant part: Liability for the commission of any offense may not be based on an omission unaccompanied by action unless a duty to perform the omitted act is otherwise imposed by law. (emphasis added by the dissent; 18 Pa. C.S. § 301(6)(2))

The precise issue thus becomes whether the legislature intended that a "contractual duty" constitutes a "duty imposed by law" for purposes of ascertaining whether conduct is criminal. While I share the desire of the prosecutor and the jury that the Pestinikases must not escape responsibility for their horribly inhuman and criminally culpable conduct, I cling to the view that an appellate court is not free to reshape the intention or revise the language of the Crimes Code. Rather, our constitutional obligation is to implement the intent and comply with the direction of the legislature.

It is true that this Court has upheld convictions for endangering the welfare of children. However, all of the cases where liability is based upon a failure to act involved the parent-child relationship and the statutory imposition of duties upon the parents of minors. In the instant case, where there was no "status of relationship between the parties" except landlord-tenant, a failure to perform a civil contract cannot alone sustain a conviction for third degree murder. Thus, it is that I dissent.

Questions

1. List all the facts relevant to deciding whether the Pestinikases had a legal duty to Joseph Kly.

2. List all of the failures to act and voluntary acts that are relevant to deciding whether the Pestinikases failed to perform a legal duty to Mr. Kly.

3. Summarize the arguments regarding criminal omission of both the majority and dissenting opinions.

4. In your opinion, did the Pestinikases have a legal duty to Joseph Kly? Assuming they did have a legal duty, did they reasonably perform their duty? Back up your answer with facts and arguments in the case excerpt.

Zamara Janice Williams (Defendant) was convicted in a jury trial in the Circuit Court, Hillsborough County, of possession of cannabis with intent to sell manufacture, or deliver. Defendant appealed. Th; Florida Court of Appeals reversed and remanded.

Tampa police officers Filippone and Cruz followed Zamara Janice Williams onto the interstate highway after they saw her drop off a passenger in the middle of 24th Avenue. They signaled to her to pull over because she was speeding and driving recklessly on the interstate and she complied, exiting the interstate and pulling into a parking lot. She was driving a rented compact hatchback with two passengers.

Even before the officers pulled up behind her in the parking lot, she had exited her vehicle and approached them in an extremely agitated state, telling the officers to just go ahead and give her the traffic citation. She was behaving in such an overwrought manner, amounting almost to having a panic attack and hyperventilating, that it took the officers several minutes to calm her before they could continue with the traffic stop. One officer testified that her heart was beating so furiously that he could see it pounding in her chest and offered to call emergency medical services (EMS), but she declined. The officers also testified that during this initial period of the stop, she was continually moving away from her vehicle and thus drawing them away with her; they had to keep bringing her back to her vehicle. As they stood near the driver's door, they perceived the strong odor of fresh marijuana that was emanating from the vehicle and traced it to a closed black bag behind the rear seat in the hatchback.

Based upon the odor of marijuana, the officers asked Ms. Williams for permission to search the car. She responded by saying that she did not think that there would be drugs in the car but consented to the search. Upon further investigation, the officers noted that the car was unkempt with paperwork bearing Ms. Williams' name strewn about. Inside the black bag they found a gallon ziplock bag containing almost a pound of fresh marijuana,1 a smaller baggie containing several pieces of what appeared to be, and what were later confirmed to be, crack cocaine; an open box of sandwich bags; and two digital scales. No attempt was made to lift fingerprints from the black bag or any item from inside the bag. Although the car was rented in Ms. Williams' name, she was driving it, and her personal belongings were in the car, there was nothing on or in the black bag that tied it or the items inside it to her or anyone else.

Based on the above, the State charged Ms. Williams with three counts: possession of cannabis with intent to sell; possession of cocaine with intent to sell; and possession of drug paraphernalia. When Ms. Williams' defense counsel moved for judgment of acquittal at trial, the trial court denied the motion based on the strong odor of marijuana, the fact that the officers had found letters addressed to Ms. Williams in the car, and the fact that the car was rented in her name.

After the jury submitted a question that indicated its concern about interpreting constructive possession, 2 it returned a verdict of guilty of possession of cannabis but not guilty of the cocaine and paraphernalia counts. The trial court sentenced Ms. Williams to four years' probation and she timely appealed.

Because it was clear that Ms. Williams did not have exclusive possession of the black bag containing marijuana, as there were other persons in the car and she did not admit the bag was hers, the State was required to prove constructive possession with evidence beyond the fact that she was in near proximity to the black bag. When a defendant is not in exclusive possession of the vehicle where the contraband is found, the elements of knowledge and dominion and control may not be inferred or assumed but must be established through additional and independent proof. Therefore, the State's burden was to prove two elements: (A) that Ms. Williams knew of the presence of the contraband and (B) that she had the ability to exercise dominion and control over it. It is the latter element for which we find the State's evidence lacking.

The first element- knowledge of the presence of the marijuana in the black bag-that the State had to prove in order to convict Ms. Williams of constructive possession is satisfied here by the evidence of the strong odor of marijuana of which the officers were conscious when they approached her car. Additional evidence to support this first element is the reasonable inference that can be taken from Ms. Williams' extraordinary behavior when she was stopped. The officers testified that they had never before stopped anyone for a traffic violation and had the person react as Ms. Williams did. She was anxious and nervous to an unheard of degree, hyperventilating and having observable heart palpitations, causing the officers to fear for her health and to offer to send for EMS. Further, she continually tried to maintain a distance between herself and the officers and her car. The reasonable inference is that she knew there was marijuana in the car.

It is the second element-ability to exercise dominion and control- for which there was insufficient proof. Had Ms. Williams been the only person in the car when the officers stopped her, this element would have been satisfied and a jury question raised. But because Ms. Williams had two passengers with her, the State is not entitled to the benefit of an inference of dominion and control. The State is required to produce independent evidence pointing to her dominion and control of the black bag containing the marijuana.

Even under the lesser standard of proof by a preponderance of evidence in a violation of probation case, the State in Hanania v. State, 855 So.2d 92 (Fla.2d DCA 2003 ), failed to prove constructive possession of contraband. A law enforcement officer had stopped the car in which the defendant was a front seat passenger, and a narcotics dog alerted on the passenger's seat of the car. Upon his searching the car, the officer found a yellow manila envelope containing three baggies of suspected methamphetamine between the passenger's seat and the center console transmission column, an electronic scale in a recess under the dashboard, and an envelope containing marijuana addressed to the driver and owner of the car under the passenger seat. The defendant testified that he had only recently entered the car, about five blocks before the traffic stop, because the driver, an acquaintance of his, had agreed to give him a ride home from the store where they had met. The State argued that the defendant's proximity to the contraband was sufficient evidence of the conditions violated but this court disagreed because nothing in the record indicated that the defendant knew of the presence of the drugs or the scale or that he had the ability to exercise dominion and control over them.

Even though Ms. Williams was the driver of her car and the defendant in Hanania was a passenger, the present case is much like Hanania because there was no independent evidence linking either defendant to the contraband sufficient to convict other than mere proximity of contraband not in plain view.

The evidence presented at trial satisfied the first element-knowledge-that the State had to prove in order to overcome a motion for judgment of acquittal, but it did not establish that Ms. Williams was able to exercise dominion and control over the black bag that contained marijuana. Because the State failed to present sufficient evidence linking Ms. Williams to the contraband other than her mere proximity to it, the trial court erred in denying her motion for judgment of acquittal. Accordingly, we reverse the judgment and sentence for possession of marijuana. Because of the insufficient evidence supporting her conviction, on remand she must be discharged. Judgment and sentence reversed and cause remanded with instructions to discharge Ms. Williams.

I agree that our outcome today is required by the precedent that is well explained in the court's opinion. Courts and legislatures around the country take different positions on this issue. If I were writing on a clean slate, I would be inclined to believe that a jury should be authorized to return a guilty verdict on a drug charge where the defendant is an operator of a motor vehicle and has actual knowledge that the vehicle contains illegal drugs that easily could be removed from the vehicle.

In this case, Ms. Williams was driving her small rental car fully aware that a bag containing a large quantity of marijuana was behind her in the hatchback area. This marijuana was either her marijuana, her passengers' marijuana, or marijuana jointly possessed by the driver and one or more of the passengers. Assuming the marijuana was not hers, she was in control of the car. She had the complete right before she entered the interstate to stop her car and order the criminal to exit the vehicle with the contraband. If she elected to continue to transport the contraband in this context, it seems to me that at a minimum she became a principal in the offense of possession and the jury was entitled to return this verdict.

Questions

1. Identify the two elements of constructive possession discussed by the court.

2. List the facts relevant to deciding whether Zamara Janice Williams constructively possessed marijuana.

3. Assume you 're the prosecutor. Argue that Williams actually and constructively possessed marijuana. Back up your arguments with facts in the case.

4. Assume you 're the defense attorney. Argue that Williams didn't physically or constructively possess marijuana.

Ronald Gene Fleck (Defendant) was convicted by a jury in the District Court, Douglas County, of assault by the intentional infliction of or attempt to inflict bodily harm upon another (assault-harm). Fleck appealed. The Court of Appeals reversed and remanded. The State filed a petition for review. The Minnesota Supreme Court reversed and reinstated the conviction.

Ronald Gene Fleck lived with K.W. in Alexandria Minnesota. When K.W. returned home in the earl; morning hours of January 23, 2009, Fleck was in the kitchen, drinking alcohol (according to K.W., Fleck had been drinking for "seven days straight"). As K.W. walked toward the bathroom, she heard Fleck call her name. When K.W. turned around, she saw Fleck with a large butcher knife. Fleck then stabbed K.W. once near her shoulder with an overhand motion. K. W. claimed that Fleck said something about "finishing her off" before he walked away. K.W. locked herself in the bathroom and called 911. Fleck then called his brother and sister-in-law, telling them about the stabbing and informing them that he was going to take his own life by ingesting sleeping pills.

Two officers from the Douglas County Sherriff's Department responded to the 911 call. On their arrival, the officers observed that Fleck was uncooperative and belligerent. Fleck told the officers he had taken 40 sleeping pills. Shortly after the officers arrived, Fleck became unresponsive and lost muscular control of his head and neck. Both Fleck and K. W. were taken to the hospital. At the hospital, Fleck was unresponsive and hospital tests revealed a blood alcohol level of 0.315.

Fleck was charged with second-degree assault with a dangerous weapon under Minn. Stat. § 609.222, subd. 1 (2010). Section 609.222 references Minn. Stat. § 609.02, subd. 10 (2010), which defines the offenses of assault-harm and assaultfear.1 Before trial, Fleck gave written notice that he would be relying on intoxication as a defense, and specifically requested a voluntary intoxication jury instruction.

The State contends that the language of Minn. Stat. § 609.075, 2 (Defense of Intoxication) should be interpreted as applying to specific-intent crimes, not to general-intent crimes. We agree. We next consider whether an assault-harm offense is a general-intent or specific-intent crime. We have on occasion made references to the offense of "assault" without expressly acknowledging that the Legislature has defined two distinct forms of assault. To ensure precision in our analysis, we begin with a discussion of the two distinct forms of assault recognized by the Legislature.

The first form of assault is assault-harm. A person commits the offense of assault-harm through "the intentional infliction of ... bodily harm upon another." Minn. Stat. § 609.02, subd. 10(2). "Bodily harm" means "physical pain or injury, illness, or any impairment of physical condition." Minn. Stat. § 609.02, subd. 7 (2010).

The second form of assault is assault-fear. A person commits the offense of assault-fear through "an act done with intent to cause fear in another of immediate bodily harm or death." Minn. Stat. § 609.02, subd. 10(1). An assault-fear offense does not require a finding of actual harm to the victim. Instead, the assault-fear statute is violated when one engages in an act with the intent to cause fear in another of immediate bodily harm or death. In an assault-fear crime, the intent of Defendant, as contrasted with the effect upon the victim, becomes the focal point for inquiry. With the two forms of assault in mind, we consider the distinction between general-intent and specific-intent crimes.

When a statute simply prohibits a person from intentionally engaging in the prohibited conduct, the crime is considered a general-intent crime. General intent only requires an intention to make the bodily movement which constitutes the act which the crime requires ... without proof that he meant to or knew that he would violate the law or cause a particular result.

Unlike a general-intent crime, a specific-intent crime requires an intent to cause a particular result. The phrase "with intent to" is commonly used by the Legislature to express a specific-intent requirement. The Legislature has defined the phrase "with intent to" as "the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result." Minn. Stat. § 609.02, subd. 9(4) (2010).

The parties concede that an assault-fear offense under Minn. Stat. § 609.02, subd. 10(1), is a specific-intent crime. This concession is consistent with both the most common usage of the phrase "specific intent" and the Legislature's use of the phrase "with intent to." The definition of assault-fear requires the State to prove Defendant committed an act with an additional special mental element-specifically: "an act done with intent to cause fear in another of immediate bodily harm or death." Minn. Stat. § 609.02, subd. 10(1) (emphasis added). Because an assault-fear offense is a specific-intent crime, we conclude that the district court properly instructed the jurors that they could consider Fleck's voluntary intoxication in determining whether he intended to cause K.W. to fear immediate bodily harm or death.

The parties disagree on the issue of whether an assault-harm offense under Minn. Stat. § 609.02, subd. 10(2), is a general-intent or specific-intent crime. The State claims an assault-harm offense is a general-intent crime, while Fleck claims an assaultharm offense is a specific-intent crime. We conclude that assault-harm is a general-intent crime and, therefore, the district court did not err in concluding that assault-harm is not the type of crime that is subject to a voluntary intoxication jury instruction.

The Legislature defined assault-harm as "the intentional infliction of ... bodily harm upon another." Minn. Stat.§ 609.02, subd. 10(2). The forbidden conduct is a physical act, which results in bodily harm upon another. Although the definition of assaultharm requires the State to prove that Defendant intended to do the physical act, nothing in the definition requires proof that Defendant meant to violate the law or cause a particular result. If the Legislature intended to require an additional, special mental element, it could have defined assault-harm as "an act done with the intent to cause bodily harm to another." This is especially true because the Legislature used the phrase "with intent to" when defining assaultfear in the same statutory section. Consequently, we hold that assault-harm, as defined by Minn. Stat. § 609.02, subd. 10(2), is a general-intent crime. Therefore, the district court properly instructed the jurors that they could not consider Fleck's voluntary intoxication when determining whether Fleck was guilty of intentional infliction of bodily harm. Reversed, judgment of conviction reinstated.

1. State all of the facts relevant to deciding whether Ronald Gene Fleck committed assault-threat and assault-harm.

2. How does the court define "general intent"?

3. How does the court define "specific intent"?

4. Explain the court's reasons for deciding that assault-fear is a specific intent crime and assaultharm is a general intent crime.

5. Why did the court have to decide question 2?

6. Does the court's opinion help you to understand general intent and specific intent? Defend your answer.

Calvin Stark was convicted in the Superior Court, Clallam County, Washington, of two counts of second-degree assault for intentionally exposing his sexual partners to the human immunodeficiency virus (HIV), and he appealed. The Washington Court of Appeals affirmed, and remanded the case for resentencing.

On March 25, 1988, Calvin Stark tested positive for HIV, which was confirmed by further tests on June 25 and on June 30, 1988. From June 30, 1988, to October 3, 1989, the staff of the Clallam County Health Department had five meetings with Stark during which Stark went through extensive counseling about his infection. He was taught about "safe sex," the risk of spreading the infection, and the necessity of informing his partners before engaging in sexual activity with them.

On October 3, 1989, Dr. Locke, the Clallam County Health Officer, after learning that Stark had disregarded this advice and was engaging in unprotected sexual activity, issued a cease and desist order as authorized by a Washington State statute. Stark did not cease and desist, and, consequently, on March 1, 1990, Dr. Locke went to the county prosecutor's office .... The prosecutor .. . had Dr. Locke complete a police report. The state then charged Stark with three counts of assault in the second degree under RCW 9A.36.021(1) (e), which provides: A person is guilty of assault in the second degree if he or she ... with intent to inflict bodily harm, exposes or transmits human immunodeficiency virus ....

Each count involved a different victim. Count One. The victim and Stark engaged in sexual intercourse on October 27 and October 29, 1989. On both occasions, Stark withdrew his penis from the victim prior to ejaculation. The victim, who could not become pregnant because she had previously had her fallopian tubes tied, asked Stark on the second occasion why he withdrew. He then told her that he was HIV positive.

Count Two. The victim and Stark had sexual relations on at least six occasions between October 1989 and February 1990. Stark wore a condom on two or three occasions, but on the others, he ejaculated outside of her body. On each occasion, they had vaginal intercourse. On one occasion Stark tried to force her to have anal intercourse. They also engaged in oral sex. When she told Stark that she had heard rumors that he was HIV positive, he admitted that he was and then gave the victim an AZT pill "to slow down the process of the AIDS."

Count Three. The victim and Stark had sexual relations throughout their brief relationship. It was "almost nonstop with him," "almost every night" during August 1989. Stark never wore a condom and never informed the victim he was HIV positive. When pressed, Stark denied rumors about his HIV status. The victim broke off the relationship because of Stark's drinking, after which Stark told her that he carried HIV and explained that if he had told her, she would not have had anything to do with him.

At the jury trial, the victim in count one testified to her contacts with Stark and the jury received Dr. Locke's deposition testimony regarding the Health Department's contacts with Stark. Stark did not testify. In the bench trial [trial without a jury], Dr. Locke testified. There the state also presented the testimony of one of Stark's neighborhood friends. She testified that one night Stark came to her apartment after drinking and told her and her daughter that he was HIV positive. When she asked him if he knew that he had to protect himself and everybody else, he replied, "I don't care. If I'm going to die, everybody's going to die." The jury found Stark guilty on count one.

A second trial judge found Stark guilty of the second and third counts at a bench trial. On count one, Stark was given an exceptional sentence of 120 months based on his future danger to the community. The standard range for that offense was 13 to 17 months. On counts two and three, Stark was given the low end of the standard range, 43 months each, to be served concurrently, but consecutively to count one.

Stark contends that there is insufficient evidence to prove he "exposed" anyone to HIV or that he acted with intent to inflict bodily harm. Since Stark is undisputedly HIV positive, he necessarily exposed his sexual partners to the virus by engaging in unprotected sexual intercourse. The testimony of the three victims supports this conclusion.

The testimony supporting the element of intent to inflict bodily harm includes Dr. Locke's statements detailing his counseling sessions with Stark. With regard to the first victim, we know that Stark knew he was HIV positive, that he had been counseled to use "safe sex" methods, and that it had been explained to Stark that coitus interruptus will not prevent the spread of the virus. While there is evidence to support Stark's position, all the evidence viewed in a light most favorable to the State supports a finding of intent beyond a reasonable doubt. The existence of noncriminal explanations does not preclude a finding that a defendant intended to harm his sexual partners.

With regard to the later victims, we have, in addition to this same evidence, Stark's neighbor's testimony that Stark, when confronted about his sexual practices, said, "I don't care. If I'm going to die, everybody's going to die." We also have the testimony of the victim in count two that Stark attempted to have anal intercourse with her and did have oral sex, both methods the counselors told Stark he needed to avoid. We affirm the convictions.

1. Identify all of the facts relevant to determining Stark's mental attitude regarding each of the elements in the assault statute.

2. Using the common law definition of "specific intent" and the Model Penal Code definitions of "purposely," "knowingly," "recklessly," and "negligently" and relying on the relevant facts, identify Stark's intention with respect to his acts.

3. Is motive important in this case? Should it be?

Pete Jantzi was convicted in the Circuit Court, Klamath County, of assault in the second degree, and he appealed. The Court of Appeals held that Defendant knew he had a dangerous weapon and that a confrontation was going to occur, but that he did not intend to stab the victim. Thus, Defendant acted "recklessly," not "knowingly," and should be convicted of assault in the third degree rather than assault in the second degree. Affirmed as modified; remanded for resentencing.

Pete Jantzi (Defendant) testified and the trial court judge believed that he was asked to accompany Diane Anderson, who shared a house with Defendant and several other people, to the home of her estranged husband, Rex. While Diane was in the house talking with Rex, Defendant was using the blade of his knife to let the air out of the tires on Rex's van. Another person put sugar in the gas tank of the van.

While the Andersons were arguing, Diane apparently threatened damage to Rex's van and indicated that someone might be tampering with the van at that moment. Rex's roommate ran out of the house and saw two men beside the van. He shouted and began to run toward the men. Rex ran from the house and began to chase Defendant, who ran down a bicycle path. Defendant, still holding his open knife, jumped into the bushes beside the path and landed in the weeds. He crouched there, hoping that Rex would not see him and would pass by. Rex, however, jumped on top of Defendant and grabbed his shirt. They rolled over and Rex was stabbed in the abdomen by Defendant's knife. Defendant could not remember making a thrusting or swinging motion with the knife; he did not intend to stab Rex.

The indictment charged that defendant "did unlawfully and knowingly cause physical injury to Rex Anderson by means of a deadly weapon, to-wit: knife, by stabbing the said Rex Anderson with said knife." ORS 163.175 provides that: A person commits the crime of assault in the second degree if he intentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon. "Knowingly" is defined in ORS 161.085(8): "Knowingly" or "with knowledge" when used with respect to conduct or to a circumstance described by a statute defining an offense means that a person acts with an awareness that [his] conduct is of a nature so described or that a circumstance so described exists. [According to the commentary to the New York Criminal Code that the Oregon Criminal Code was based on:] Under the formulations of the Model Penal Code (§ 2.02(2bii)) and the Illinois Criminal Code (§ 4-5(6)), "knowingly" is, in one phase, almost synonymous with "intentionally" in that a person achieves a given result "knowingly" when he "is practically certain" that his conduct will cause that result. This distinction between "knowingly" and "intentionally" in that context appears highly technical or semantic, and the New York Revised Penal Law does not employ the word "knowingly" in defining result offenses. Murder of the common law variety, for example, is committed intentionally or not at all. (Commentary § 15.05, New York Revised Penal Law)

Basically, the facts of this case are: that Defendant was letting air out of the tires and he has an open knife. He was aware of what his knife is like. He is aware that it is a dangerous weapon. He runs up the bicycle path. He has a very firm grip on the knife, by his own admission, and he knows the knife is dangerous. It is not necessary for the state to prove that he thrust it or anything else. Quite frankly, this could have all been avoided if he had gotten rid of the knife, so he 'knowingly caused physical injury to Rex Anderson.' And, therefore, I find him guilty of that particular charge.

Although the trial judge found Defendant guilty of "knowingly" causing physical injury to Anderson, what he described in his findings is recklessness. The court found that defendant knew he had a dangerous weapon and that a confrontation was going to occur. The court believed that Defendant did not intend to stab Anderson. The court's conclusion seems to be based on the reasoning that because Defendant knew it was possible that an injury would occur, he acted "knowingly." However, a person who "is aware of and consciously disregards a substantial and unjustifiable risk" that an injury will occur acts "recklessly," not "knowingly."

We have authority, pursuant to ... the Oregon Constitution, to enter the judgment that should have been entered in the court below. Assault in the third degree is a lesser included offense of the crime of assault in the second degree charged in the accusatory instrument in this case. We modify defendant's conviction to a conviction for the crime of assault in the third degree. Conviction affirmed as modified; remanded for resentencing.

Questions

1. List all of the facts relevant to determining Pete Jantzi's state of mind.

2. State the Oregon statute's mental element for assault.

3. State how, and explain why, Oregon modified the MPC definition of "knowingly."

4. In your opinion, did Jantzi knowingly assault Rex Anderson? Back up your answer with the facts of the case and the trial and appellate court's opinions.

Gregory Koppersmith, the appellant, was charged with the murder of his wife, Cynthia ("Cindy") Michel Koppersmith. He was convicted of reckless manslaughter, a violation of § 13A-6-3(a)(l), Ala. Code 1975, and the trial court sentenced him to 20 years in prison. The Alabama Court of Appeals reversed and remanded.

Gregory Koppersmith (appellant) and his wife were arguing in the yard outside of their residence. Cindy tried to enter the house to end the argument, but Greg prevented her from going inside. A physical confrontation ensued, and Cindy fell off of a porch into the yard. She died as a result of a skull fracture to the back of her head.

In a statement he made to law enforcement officials after the incident, Greg gave the following summary of the events leading up to Cindy's death. He and Cindy had been arguing and were on a porch outside of their residence. Cindy had wanted to go inside the house, but he had wanted to resolve the argument first. As she tried to go inside, Greg stepped in front of her and pushed her back. Cindy punched at him, and he grabbed her.

When Cindy tried to go inside again, Greg wrapped his arms around her from behind to stop her. Cindy bit him on the arm, and he "slung" her to the ground. He then jumped down and straddled her, stating that he "had her by the head" and indicating that he moved her head up and down, as if slamming it into the ground. When Cindy stopped struggling, he rolled her over and found a brick covered with blood under her head. Greg stated that, although Cindy fell near a flowerbed, he did not know there were bricks in the grass.

At trial, Greg testified that Cindy had tried to go into the house two or three times, but he had stopped her from doing so. During that time, she punched at him and he pushed her away from him. At one point, he put his arms around her from behind to restrain her, and she turned her head and bit him. When she bit him, he pulled her by her sweater and she tripped. He then "slung" her off of him, and she tripped and fell three to four feet to the ground. He jumped off of the porch and straddled her, grabbing her by the shoulders and telling her to calm down. When he realized she was not moving, he lifted her head and noticed blood all over his hands.

Greg testified that, when he grabbed Cindy from behind, he did not intend to harm her. He also testified that, when he "slung" her away from him off of the porch, he was not trying to hurt her and did not intend to throw her onto a brick. Rather, he stated that he simply reacted after she bit his arm. He also testified that he did not know there were bricks in the yard, that he had not attempted to throw her in a particular direction, and that he was not aware of any risk or harm his actions might cause.

Greg further testified that, when he grabbed and shook her after she fell, he did not intend to harm her, he did not know there was a brick under her head, and he did not intend to hit her head on a brick or anything else. Instead, he testified that he was trying to get her to calm down.

The medical examiner, Dr. Gregory Wanger, testified that the pattern on the injury to the victim's skull matched the pattern on one of the bricks found at the scene. He stated that, based on the position of the skull fracture and the bruising to the victim's brain, the victim's head was moving when it sustained the injury. He testified that her injuries could have been caused by her falling off of the porch and hitting her head on a brick or from her head being slammed into a brick.

The indictment in this case alleged that Greg Koppersmith "did, with the intent to cause the death of Cynthia Michel Koppersmith, cause the death of Cynthia Michel Koppersmith, by striking her head against a brick, in violation of § 13A-6-2 of the Code of Alabama (C.R.11)." Greg requested that the trial court instruct the jury on criminally negligent homicide as a lesser included offense of murder. However, the trial court denied that request, and it instructed the jury only on the offense of reckless manslaughter.

Section 13A-6-3(a), Ala. Code 1975, provides that a person commits the crime of manslaughter if he recklessly causes the death of another person. A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

"A person commits the crime of criminally negligent homicide if he causes the death of another person by criminal negligence" § 13A-6-4(a), Ala. Code 1975. A person acts with criminal negligence with respect to a result or to a circumstance which is defined by statute as an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. A court or jury may consider statutes or ordinances regulating Defendant's conduct as bearing upon the question of criminal negligence.

The only difference between manslaughter under Section 13A-6-3(a)(l) and criminally negligent homicide is the difference between recklessness and criminal negligence. The reckless offender is aware of the risk and "consciously disregards" it. On the other hand, the criminally negligent offender is not aware of the risk created ("fails to perceive") and, therefore, cannot be guilty of consciously disregarding it. The difference between the terms "recklessly" and "negligently" is one of kind, rather than degree. Each actor creates a risk or harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it.

Thus, we must determine whether there was any evidence before the jury from which it could have concluded that Greg did not perceive that his wife might die as a result of his actions. We conclude that there was evidence from which the jury could have reasonably believed that his conduct that caused her to fall was unintentional and that he was not aware he was creating a risk to his wife. He testified that, after she bit him, his reaction-which caused her to fall to the ground-was simply reflexive.

Greg also testified that he did not know there were bricks in the yard. Even in his statement to the police in which he said he was slamming her head against the ground, Greg said he did not know at that time that there was a brick under her head.

Finally, he stated that he did not intend to throw her onto a brick or harm her in any way when he "slung" her, and that he did not intend to hit her head on a brick or otherwise harm her when he grabbed and shook her after she had fallen.

Because there was a reasonable theory from the evidence that would have supported giving a jury instruction on criminally negligent homicide, the trial court erred in refusing to instruct the jury on criminally negligent homicide. Thus, we must reverse the trial court's judgment and remand this case for a new trial. Reversed and remanded.

Questions

1. List all of the facts relevant to determining Koppersmith's mental state with respect both to his acts and the results of his actions.

2. In your opinion, was Koppersmith reckless or negligent? Support your answer with relevant facts.

3. Is it possible to argue that Koppersmith knowingly or even purposely killed his wife? What facts, if any, support these two states of mind?

This case comes to us on appeal from questions certified to the Minnesota Court of Appeals from the Dakota County District Court regarding two mistake of law defenses-reliance on advice of counsel and reliance on an official interpretation of the law. Richard Joseph Jacobson was charged with conspiracy to procure unlawful voting and conspiracy to commit forgery. At a pretrial hearing, the state brought a motion seeking to exclude evidence concerning an unrelated election law complaint and the response to that complaint by the Dakota County Attorney's Office. The district court granted the state's motion, barred Jacobson from asserting the defenses of reliance on advice of counsel and reliance on an official interpretation of the law, and certified two questions to the court of appeals. The court of appeals held that the defenses of good faith reliance on the advice of counsel and good faith reliance on an official interpretation of the law are "available defenses to a defendant charged with a specific intent crime" and that the district court prematurely concluded that any reliance was unreasonable. The court of appeals further held that Jacobson is entitled to present evidence of his reliance as part of his due process right to present a defense and explain his conduct. We hold that evidence of Jacobson's mistake of law is admissible because it is relevant to whether he intended to break the law-an element of the conspiracy charges.

At the time of the events alleged in the complaint, Jacobson was the owner and operator of "Jakes," a strip club located at 15981 Clayton Avenue in Coates, Minnesota. For several years, Jakes has been the subject of substantial local legal controversy. 3 On October 11, 2002, the Dakota County Treasurer-Auditor's Office reported that it received 93 Minnesota voter registration cards and voter change of address cards listing 15981 Clayton Avenue, Coates, Minnesota-Jakes' address-as the voters' place of residence. 4 While the registrants signed the voter registration cards certifying that they "maintained residence at the address given on the registration form," Dakota County property tax records indicate that Jakes is a "bar/tavern" with four bathrooms and no bedrooms.

On October 14, 2002, investigating officers executed a search warrant for Jakes and a vehicle registered to Jacobson. While inside Jakes, the officers found 13 blank voter registration forms and two completed voter registration cards listing 15981 Clayton Avenue, Coates, Minnesota, as the voters' place of residence. In the vehicle, officers found 26 blank voter registration forms and a highlighted copy of voter registration statutes. The officers found no evidence that anyone was residing at Jakes. Jacobson was subsequently charged with conspiracy to procure unlawful voting in violation of Minn. Stat.§ 204C.14(e) (2004) and Minn. Stat. § 609 .17 5 (2004 ), and conspiracy to commit forgery in violation of Minn. Stat. § 609.63, subd. 1(6) (2004), and§ 609.175. Jacobson pleaded not guilty to the charges.

Subsequent to his pleas of not guilty, Jacobson filed a motion to dismiss on due process grounds. In connection with the motion, Jacobson submitted an affidavit stating that for the past several years he had retained an attorney, Randall Tigue, to attend to various civil matters. Jacobson averred that, in July 2002, Tigue showed him a copy of Minnesota's voting and election laws and a letter from Chief Deputy Dakota County Attorney Phillip Prokopowicz to Minneapolis Assistant Clerk and Director of Elections Suzanne Griffin.

The letter to Griffin, dated June 4, 2002, concerned possible violations of voter registration and election laws by Minneapolis police officers who registered to vote using their work addresses rather than their home addresses. The matter had been referred by the Hennepin County Attorney's Office to the Dakota County Attorney's Office, presumably because of a conflict of interest. In the letter, Chief Deputy Prokopowicz informed the city that the Dakota County Attorney's Office had concluded that there was no criminal wrongdoing by the police officers and thus the office was closing its investigation of the matter. 5 Jacobson asserted ... that "with Mr. Tigue's counsel and advice, and relying on a review of Minnesota's election laws and the letter by Mr. Prokopowicz," he and several of his employees "devised a plan to get people to register to vote using Jakes as a residence."

In response to Jacobson's assertions in his affidavit, the state filed a motion to exclude (1) "any documentation, testimony, or reference to an election law complaint made by [Suzanne] Griffin, Minneapolis Assistant City Clerk-Director of Elections, regarding alleged violations of voter registration election laws by various Minneapolis police officers" and (2) "any documentation, testimony, or reference to the disposition of the . .. complaint by the Dakota County Attorney's Office." At the hearing on the state's motion to exclude, the state clarified that its motion included Tigue's testimony regarding Prokopowicz's letter, any advice Tigue may have given Jacobson based on the letter, and any reference to the advice.

Jacobson opposed the state's motion on five separate grounds. [Only three are relevant here.] He argued that the challenged evidence (1) was relevant to the issue of his intent; (2) was relevant to establish the defenses of reliance on the advice of counsel and reliance on an official interpretation of the law; ... and (5) had to be admitted to protect Jacobson's constitutional right to present a defense.

Jacobson has been charged with conspiracy to procure unlawful voting and conspiracy to commit forgery. Under Minnesota law, conspiracy occurs when one "conspires with another to commit a crime" and requires proof that "in furtherance of the conspiracy one or more of the parties does some overt act." Minn. Stat. § 609 .17 5, subd. 2. The state argues that the intent required under this statute is intent to commit the underlying acts. However, in explaining the intent required to establish conspiracy we have stated: "A conscious and intentional purpose to break the law is an essential element of the crime of conspiracy ... ," State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.2001) (emphasis added). Similarly, CRIMJIG 5.11 states that the actions of the conspirators "must be the result of a preconceived and mutual intention to commit a crime." 10 Minn. Dist. Judges Ass'n, Minnesota Practice-Jury Instruction Guides, Criminal, CRIMJIG 5.11 (4th ed. 1999) (emphasis added). We reaffirm our statement in Kuhnau and hold that the intent necessary to prove conspiracy is the intent to "break the law."

As a general rule, mistake or ignorance of the law is not a defense. It is assumed that all members of an ordered society are presumed either to know the law or, at least, to have acquainted themselves with those laws that are likely to affect their usual activities. But, a mistake of law "defense" has been recognized in limited circumstances when the mistake "negatives the existence of a mental state essential to the crime charged."

A mistake of law that negates the mental state of the charged offense is not a "defense" in the sense that the defendant carries the burden of persuasion. Rather the evidence relates to disproving or negating an element of the crime charged. In this circumstance, a mistake of law "defense" is actually an application of the principle that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship [Discussed in Chapter 2, pp. 47-48]

Here, Jacobson's mistake of law is relevant to negate the intent for the crime charged because conspiracy requires proof of a "conscious and intentional purpose to break the law." Kuhnau, 622 N.W.2d at 556. Thus, if Jacobson believed in good faith that it was legal to procure others to fill out voter registration cards listing Jakes as their residence, he would not have the requisite intent for conspiracy. We therefore hold that evidence relating to a defendant's misunderstanding of the law is admissible when relevant to whether the defendant had the intent required for the charged offense.

We now turn to the state's argument that, even if the "defenses" of reliance on advice of counsel and reliance on an official interpretation of the law exist in Minnesota, any reliance by a defendant must be reasonable in order to assert the defenses at trial. The state argues that Jacobson is precluded from using any evidence of his reliance at trial because the district court found that Jacobson's reliance on advice of counsel and on an official interpretation of the law was unreasonable. We disagree. As we stated above, the "defenses" at issue here are fundamentally evidentiary issues relating to the defendant's mental state. Because the existence of intent is a question of fact, it must be submitted to the jury.

We therefore hold that, on the record before us and based on the pending charges, Jacobson has a right to present evidence that he relied on Tigue's advice and on Chief Deputy Dakota County Attorney Prokopowicz's letter regarding the Minneapolis police officer matter. Our holding is grounded in constitutional law and our recognition that it is fundamental that criminal defendants have a due process right to explain their conduct to a jury. While the district court can impose limits on the testimony of a defendant, the limits must not trample on the defendant's right to a fair trial. Affirmed.

Questions

1. List all of the facts relevant to deciding whether "Jake" Jacobson qualified for the failure of proof defense of mistake of law.

2. State the Minnesota Supreme Court's decision.

3. Summarize the court's arguments supporting its ruling that Jacobson was entitled to have the jury decide his failure of proof defense.

4. Recall that at the suppression hearing, the state argued that in a mistake of law claim, "there is no legal defense of [reliance on] advice of legal counsel, and that even if the defense of reliance on the advice of legal counsel and reliance on an official interpretation of the law exist as a general matter, the defenses could not be asserted in the instant case because these defenses require a showing that the defendant used due diligence and care." Which part of the court's decision is closest to your view? Defend your answer.

Marc Burrell (defendant) was con

victed of manslaughter after a jury trial in the Superior Court. Burrell

appealed, arguing that the trial court committed an error in its jury instruction concerning the

requirement under a New Hampshire statute that provides that conduct creating criminal

liability must

include a voluntary act. The New Hampshire Supreme Court affirmed the Superior Court.

Douglas Saari and Joey Baglione made plans to have a few drinks at Baglione's house. Before going

there, Saari, a minor, stopped at Burrel

l's house and asked Burrell to purchase beer. Burrell agreed and

decided to accompany Saari to Baglione's. When they arrived, Baglione answered the door holding a

.357 revolver. Inside the house were an AR

-

15 rifle, possibly a shotgun, a .44 revolver, and

a .38 snub

-

nose revolver. The .357 and .44 revolvers were loaded.

During the afternoon the three drank beer and watched an X

-

rated movie. Baglione and Burrell played a

form of Russian roulette with the .357 revolver. One bullet was placed in the chamber, t

he chamber was

spun, one player placed the gun to his head with his finger on the trigger, and then the gun was

examined to see whether the bullet would have been discharged if the trigger had been pulled. At some

point in the afternoon, all three went out

on Baglione's back porch and fired one or two rounds with the

.44 revolver.

At trial, Saari testified that while Baglione was out of the room, Saari told Burrell that he was going to

steal the .38 and placed it in the lining of his leather jacket. Burrell

agreed to go along with Saari, and

stated that he was going to steal the AR

-

15, the .44, and the .357. When Baglione returned, Burrell

announced his intention to steal the weapons. Baglione said, "You're not going to steal those guns, so I'll

stop you." B

aglione ran out of the room, and returned with a shotgun. By then, Burrell had put down the

AR

-

15, but kept the .44 in his belt and the .357 in his hand.

Saari testified that Baglione "came running out of the basement ... and told [Burrell], ... 'You 're n

ot

going to steal those guns because I'll blow your f ___ head off."' Saari added that Baglione was not

"serious .. . [and] he pumped the shotgun more than once, so I know it wasn't loaded." Saari then

"looked at Burrell to see what his response was. And b

efore I had time to do anything, he had shot in

Baglione's direction" and hit him. Burrell dropped the gun, tried to call an ambulance, but panicked and

went outside. At that time, Baglione's brother

-

in

-

law, Greg Eastman, arrived and called the ambulance.

After the ambulance arrived, Eastman, Saari and Burrell went to the hospital.

At trial, Burrell testified that the fatal shooting did not occur when Baglione threatened him, but later in

the afternoon while he and Baglione were preparing to take some of th

e guns back to a closet in

Baglione's father's bedroom. Before storing the guns, Baglione told Burrell that his father always kept

the .357 loaded.

Burrell testified that, after loading the .357 revolver, he was seated on the forward edge of the love seat

with his feet outstretched. Baglione passed in front of him from right to left. While Baglione was to his

left, he sighted the gun on the hearth and put his finger on the trigger. He heard a noise and saw

Baglione move from left to right in front of him. T

hinking that they were going to collide, he jerked back

and the gun went off. Burrell admitted on cross

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examination that because of a lazy left eye, a problem

he was aware of on the day of the shooting, he had great difficulty seeing anything to his left.

Marc Burrell (defendant) was convicted of manslaughter after a jury trial in the Superior Court. Burrell

appealed, arguing that the trial court committed an error in its jury instruction concerning the

requirement under a New Hampshire statute that provides that conduct creating criminal liability must

include a voluntary act. The New Hampshire Supreme Court affirmed the Superior Court.

Douglas Saari and Joey Baglione made plans to have a few drinks at Baglione's house. Before going

there, Saari, a minor, stopped at Burrell's house and asked Burrell to purchase beer. Burrell agreed and

decided to accompany Saari to Baglione's. When they arrived, Baglione answered the door holding a

.357 revolver. Inside the house were an AR-15 rifle, possibly a shotgun, a .44 revolver, and a .38 snub-

nose revolver. The .357 and .44 revolvers were loaded.

During the afternoon the three drank beer and watched an X-rated movie. Baglione and Burrell played a

form of Russian roulette with the .357 revolver. One bullet was placed in the chamber, the chamber was

spun, one player placed the gun to his head with his finger on the trigger, and then the gun was

examined to see whether the bullet would have been discharged if the trigger had been pulled. At some

point in the afternoon, all three went out on Baglione's back porch and fired one or two rounds with the

.44 revolver.

At trial, Saari testified that while Baglione was out of the room, Saari told Burrell that he was going to

steal the .38 and placed it in the lining of his leather jacket. Burrell agreed to go along with Saari, and

stated that he was going to steal the AR-15, the .44, and the .357. When Baglione returned, Burrell

announced his intention to steal the weapons. Baglione said, "You're not going to steal those guns, so I'll

stop you." Baglione ran out of the room, and returned with a shotgun. By then, Burrell had put down the

AR-15, but kept the .44 in his belt and the .357 in his hand.

Saari testified that Baglione "came running out of the basement ... and told [Burrell], ... 'You 're not

going to steal those guns because I'll blow your f ___ head off."' Saari added that Baglione was not

"serious .. . [and] he pumped the shotgun more than once, so I know it wasn't loaded." Saari then

"looked at Burrell to see what his response was. And before I had time to do anything, he had shot in

Baglione's direction" and hit him. Burrell dropped the gun, tried to call an ambulance, but panicked and

went outside. At that time, Baglione's brother-in-law, Greg Eastman, arrived and called the ambulance.

After the ambulance arrived, Eastman, Saari and Burrell went to the hospital.

At trial, Burrell testified that the fatal shooting did not occur when Baglione threatened him, but later in

the afternoon while he and Baglione were preparing to take some of the guns back to a closet in

Baglione's father's bedroom. Before storing the guns, Baglione told Burrell that his father always kept

the .357 loaded.

Burrell testified that, after loading the .357 revolver, he was seated on the forward edge of the love seat

with his feet outstretched. Baglione passed in front of him from right to left. While Baglione was to his

left, he sighted the gun on the hearth and put his finger on the trigger. He heard a noise and saw

Baglione move from left to right in front of him. Thinking that they were going to collide, he jerked back

and the gun went off. Burrell admitted on cross-examination that because of a lazy left eye, a problem

he was aware of on the day of the shooting, he had great difficulty seeing anything to his left.