State v. Lomu

VOROS, Judge

(concurring):

{31 I concur in the majority opinion. I write separately to suggest that our accomplice liability statute be amended to clearly reflect relevant case law and that, in the interim, trial judges would do well to instruct juries on that case law if requested.

182 The accomplice liability statute expands criminal lability to embrace a person who assists another person to commit an offense:

'Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.

Utah Code Ann. § 76-2-202 (LexisNexis 2012). Utah courts read this statute to mean that "an accomplice need not act with the same intent, or mental state, as the principal," State v. Jeffs, 2010 UT 49, ¶ 49, 243 P.3d 1250, "as long as the accomplice intended that an offense be committed," State v. Briggs, 2008 UT 75, ¶ 14, 197 P.3d 628 (citing State v. Alvarez, 872 P.2d 450, 461 (Utah 1994)). Thus, "[aln accomplice will be held criminally responsible to the degree of his own mental state, not that of the principal." Briggs, 2008 UT 75, ¶ 14, 197 P.3d 628; accord State v. Crick, 675 P.2d 527, 534 (Utah 1983). But see State v. Telford, 2002 UT 51, ¶ 4, 48 P.3d 228 (per curiam) ("The accomplice liability provision requires the fact finder to determine that the accomplice had the same mental state as the person who directly committed the crime."), called into question by State v. Binkerd, 2013 UT App 216, ¶ 28 n. 5, 310 P.3d 755.

T33 This court has held that the foregoing principles are sufficiently communicated to a jury by a combination of an instruction reciting section 76-2-202 verbatim and an instruction stating that to convict the defendant of attempted murder based on the accomplice liability statute the jury must find that he "intentionally attempted to cause the death of another person." State v. Augustine, 2013 UT App 61, 110, 298 P.3d 693 (stating also that the jury had before it "compelling evidence of [the defendant's] liability as a principal"). But I question whether an ordinary juror is likely to glean from the words of the statute alone the rule that criminal actors with different mental states are guilty of different crimes.

134 Accordingly, I encourage the legislature to consider amending the accomplice liability statute to clearly reflect the gloss our case law has properly put on it: that each actor's mental state determines that actor's liability. In the meantime, I believe justice would be served if trial courts explicitly instructed juries to this effect upon request.