People v. Hack , 219 Mich. App. 299 ( 1996 )

R. D. Gotham, J.

(concurring). While I agree with Judge Sawyer’s analysis in the lead opinion, I also believe defendant’s conviction as an accomplice can be justifiably affirmed for a somewhat different reason.

Authoritative case law analyzes accomplice culpability as derivative. That is, we envision a joint enterprise in which the main protagonist or real culprit is assisted in some fashion by an accomplice who either intends the crime or fulfills the scienter requirement with “guilty knowledge” of the principal’s intent. See People v Wilson, 196 Mich App 604; 493 NW2d 471 (1992), and the cases cited therein.

This, however, is a case of first impression regarding whether our statute must be so restrictively interpreted where the main actor’s tender age raises an issue about the very existence of a crime, as opposed to a legal defense to conviction.

In many contexts it is highly significant that a young child lacking mens rea cannot commit a crime, as opposed to an older actor’s lack of mens rea by virtue of legal insanity or other affirmative defense.

In this context, however, it is a classic distinction without a difference, because our accomplice statute literally requires no mens rea on the part of the “principal” actor.

MCL 767.39; MSA 28.979 reads:

Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.

This statute speaks of the “act constituting the offense,” not of the act and mens rea constituting the offense or crime. This statute makes culpable not only one who aids another, but also one who “procures” another to “commit the act. ”

Neither this statute nor our common law has required that the main protagonist supply the mens rea for the crime. There is no reason to require it in the present context. According to the jury verdict, defendant not only procured the act by the children but also supplied all the mens rea necessary for criminal sexual conduct in this case. He was thus properly convicted as an accomplice.

One can easily conceive of how very innocent children could be procured and counseled to commit some very terrible criminal acts. Under our statute, the responsible adult can be prosecuted, tried, convicted, and punished “as if he had directly committed such offense.”