§702-222 - Liability for conduct of another; complicity.

§702-222 Liability for conduct of another;
complicity. A person is an accomplice of another person in the commission
of an offense if:

(1) With the intention of promoting or facilitating
the commission of the offense, the person:

(a) Solicits the other person to commit it; or

(b) Aids or agrees or attempts to aid the
other person in planning or committing it; or

(2) The person's conduct is expressly declared by law
to establish the person's complicity. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §702-222

This section sets forth the types and extent of complicity in
the penal conduct of another. In subsection (1) the Code sets forth the state
of mind that is required--"intention of promoting or facilitating the
commission of the offense"--and the nature of action or omission on the
part of the defendant which is sufficient to establish complicity in and
liability for the conduct of another. The Code avoids the vague concept of
conspiracy in basing penal liability on the conduct of another, and focuses
instead on the conduct of the accused which is sufficient to establish the
accused's complicity.

The Code includes solicitation, aid, agreement and attempt to
aid, and the failure to make a proper effort to exercise a legal duty to
prevent commission of the offense. Since the intent to promote or facilitate
the commission of the offense is present, there is no risk of innocence. Given
the intent specified, the inclusion of attempts to aid seems entirely proper.
Acquittal should not be had upon a showing of ineffective aid. "Where
complicity is based upon agreement or encouragement, one does not ask for
evidence that they were actually operative psychologically on the person who
committed the offense; there ought to be no difference in the case of
aid."[1]

It should be pointed out that approval of the conduct of
another is not to be implied from the phrase "with intention of promoting
or facilitating the commission of the offense." For example, a landlord
who leases premises with intent to facilitate another's establishing an illegal
gambling casino or narcotics den would be liable regardless of the landlord's
personal predilections.

Subsection (2) preserves the concept that special legislation
may declare specific conduct of the accused sufficient to establish the
accused's complicity in the conduct of another. Such legislation is an
analogue to that declaring particular acts of assistance independent offenses.
Thus, for example, being a member of a mob may suffice to establish complicity
in a riot or looting or lynching.

Previous Hawaii law on complicity was more simplified and
"modern" than that found in most states which have not undertaken a
recent revision of their penal laws, and to a substantial degree was similar in
effect to the Code provision. However, the prior statute did draw distinctions
based on (1) presence at the offense (which has been liberally interpreted),
and (2) participation (as opposed to aid, command, or encouragement).[2] These
verbal distinctions, however, were apparently without legal consequence; under
the prior statute every person who aids in the commission of a crime or who
"abets..., procures, counsels, incites, commands or hires another to
commit the same"[3] "is guilty of such offense."[4] Although
the statutory law did not resort to the term "conspiracy" to
establish complicity, the court has.[5] This should be avoided because in some
instances, where the chain of conspirators has become attenuated, imposition of
liability, on the basis of complicity, for acts of remote conspirators might be
of questionable wisdom.

Subsections (1)(a) and (1)(b) rationalize the prior law,
delete archaic phrases, and achieve greater clarity. Subsection (1)(c), which
establishes complicity for failure to exercise a legal duty to prevent the
offense, is an addition to the law.

Case Notes

Evidence held sufficient to prove defendant was an accomplice
in the commission of burglary. 58 H. 404, 570 P.2d 844.

Instruction on law of principals and accomplices was not
erroneous. 59 H. 625, 586 P.2d 250.

Statute provides for liability where an accomplice simply
aids the perpetrator in committing an offense. 61 H. 475, 605 P.2d 75.

Accomplice jury instruction did not contain mens rea
element. 72 H. 278, 815 P.2d 428.

Plain language of section imposes no requirement that a joint
legal duty exist before accomplice liability is imposed. 10 H. App. 73, 861
P.2d 37.

Cited: 9 H. App. 551, 851 P.2d 926; 78 H. 488 (App.), 896
P.2d 944.

__________

§702-222 Commentary:

1. M.P.C., Tentative Draft No. 1, comments at 27 (1953).

2. H.R.S. §704-1, 704-3.

3. Id. §704-3.

4. Id. §704-4.

5. State v. Yoshino, 45 Haw. 640, 372 P.2d 208 (1962); State
v. Yoshida, 45 Haw. 50, 361 P.2d 1032 (1961).