Accomplice Liabilty Essay, Research Paper

Questions Presented

1. Whether a person in Alaska can be charged as an accomplice to an unintentional crime, when Alaskan courts required that one must have the specific intent to promote or facilitate the offense?

2. Whether the mother was the legal cause of her children’s death, when she permitted the father to take the children in his car when he was drunk?

Statement of the Case

The appellant, Elaine Benis, was indicted in the County of Norchester, on one count of manslaughter, pursuant to A.S. ?11.41.120. (R. at 1.) She was also indicted for one count of accessory to manslaughter, pursuant to A.S. ?11.41.120 and A.S. ?11.16.110. (R. at 1). After the presentation of the prosecution’s case, the defense moved to dismiss on the grounds that the prosecution did not prove beyond a reasonable doubt that Mrs. Benis was reckless. (R. at 9). This motion was denied. At the conclusion of its case, the defense moved for a directed verdict, stating that the prosecution failed to show that Mrs. Benis recklessly caused the death of her children. (R. at 12). This motion was denied and the judge informed the counselors that he would charge the jury in accordance with the state’s proposed charge. (R. at 13). The defense strongly objected and renewed its motion for a directed verdict, submitting that there was insufficient evidence to prove that Mrs. Benis was the cause of her children’s death, since Mr. Peterman’s actions clearly were the only cause of their death and that it is logically impossible for any jury to find someone guilty as an accomplice to an unintended crime. (R. at 13). The trial judge denied the motion. (R. at 13).

Mrs. Benis was convicted and appealed to the Court of Appeals of the State of Alaska. (R. at 15). At issue in the appeal was whether the trial court erred, as a matter of law, (1) in instructing the jury on the charge of accessory to manslaughter and (2) in denying Mrs. Benis’s post trial motion for a directed verdict because there was insufficient evidence to support a conviction as a principal. (R. at 16).

The Court of Appeals held that the trial court did not err in instructing the jury that one can be an accomplice to reckless manslaughter even though it is a not a specific intent crime. (R. at 17). The court based its decision on holdings from other jurisdictions and rejected the Alaskan doctrine that one cannot be an accomplice to a crime when he acts recklessly. (R. at 17). Furthermore, the court held that there was sufficient evidence to support a conviction of Mrs. Benis as principal because her act was the legal cause of death. (R. at 17).

Mrs. Benis now appeals to the Supreme Court of Alaska. This appeal is limited to the issue of whether being an accessory to manslaughter is a crime under Alaska law and whether there was sufficient evidence that Mrs. Benis’s act caused the death of her two daughters. (R. at 19). The defense appeals on the grounds that the law of Alaska does not permit an instruction that one can be an accomplice to an unintentional crime when they did not have the specific intent to promote or facilitate the offense and that Mrs. Benis’s act was not the proximate cause of her two children’s death.

On Sunday, October 10, 1999, Jay Peterman came to his wife’s house, Mrs. Benis, because he is allowed to see his children, pursuant to a temporary separation agreement. (R. at 16). Mrs. Benis testified that her husband’s eyes were red and that he appeared tipsy, “…but he drove up to the house, so I thought he was O.K.” (R. at 11). However, when the prosecution asked Mrs. Benis if she knew that Mr. Peterman was drunk at the time he picked up the girls, she emphatically replied “No”. (R. at 12). Furthermore, expert testimony from the Medical Examiner reveals that even though someone has a blood alcohol level of 0.14, it is not absolutely certain that the person appears intoxicated to the outside world. (R. at 7).

Mr. Peterman had a breath-analyzing device installed in his car because of past drunk driving incidents. (R. at 16). This device is designed to keep a drunken driver from starting a car. The system requires a driver to breathe into a device and register a clean breath before the ignition unlocks. The driver is also subject to rolling retests during the trip to make sure the driver is alcohol free. If alcohol is registered, the vehicle’s horn honks nonstop until the vehicle is stopped. (R. at 16). Testimony from Maggie O’Connell indicates that Mr. Peterman had his daughter Sarah blow into the tube for him before the car drove off. (R. at 2). Mrs. Benis testified that she did not see the car drive away. (R. at 11). That was the last time she saw her children alive. At about 2:00 p.m. on that Sunday, Peterman drove his car into oncoming traffic, killing himself and both of Mrs. Benis’s daughters. (R. at 16).

Analysis

I. ALASKA LAW REGARDING ACCOMPLICE LIABILITY IS CLEAR AND ONLY ALLOWS FOR ONE INTERPRETATION: ONE MUST SPECIFICALLY INTEND TO PROMOTE OR FACILITATE THE COMMISSION OF THE OFFENSE.

When this court is reviewing a matter of law it adopts a rule that is most persuasive in light of precedent, reason, and policy. See American Computer Institute v. State, Nos. S-8664, S-8694, 5235, 2000 WL 146847 (Alaska 2000). This court’s interpretation of accomplice liability has been able to stand the test of time because its decisions have been based on common law, case precedent and statutory interpretation. The early definition of accomplice liability required one to have knowledge and specific intent to aid, abet or participate in a criminal act. This court was able to establish a mens rea requirement for an accomplice because the criminal law was codified frm common law. For 17 years this court held that one has to have knowledge and specific intent in order to be an accomplice to a crime.

After the legislature revised the criminal code in Alaska the strong presumption from statutory interpretation, legislative history and case law is that they wanted to codify prior case law and common law. Also, the legislature had no intention of adopting the Model Penal Code’s approach to accomplice liability. It is the legislature’s power not the judiciary’s to change law.

The society in Alaska would be the one most devastated if the Appeals Court’s decision is upheld. Every man and woman would have to walk a so-called straight line. In the long-run everyday behavior would be criminalized.

A. This court has consistently held that one has to have the knowledge and the specific intent to be convicted as an accomplice to a crime.

This court’s interpretation of accomplice liability has been able to stand the test of time because its decisions have been based on common law, case precedent and statutory interpretation. In Mahle v. State, 371 P.2d 21 (Alaska 1962), this court had its first chance to define who was an accomplice, its general definition was that an accomplice is “…one who in some manner, knowingly and with criminal intent aids, abets, assists or participates in a criminal act.” Id. at 25. See Daniels v. State, 383 P.2d 323, 324 (Alaska 1963), Taylor v. State, 391 P.2d 950 (Alaska 1964), Fajerak v. State, 439 P.2d 783, 788 (Alaska 1968), Flores v. State, 443 P.2d 73, 78 (Alaska 1968), Beavers v. State, 492 P.2d 88, 97 (Alaska 1971). This court in Daniels explained, “Neither the knowledge that a crime is being committed nor the concealment of that knowledge makes a person an accomplice, unless he aided or participated in the offense or conspired to commit it.” Id. at 383 P.2d 323, 325 accord Mahle, 371 P.2d 21, 25, Fajerak, 439 P.2d 783, 788. Furthermore, in Mahle this court stated, an accomplice has to voluntarily participate in the completion of the crime. Id. at 371 P.2d 21, 25. As exemplified in Daniels, three men had used a woman’s car to commit a burglary; the woman never consented to this use or even had knowledge thereof. Id at 383 P.2d 323, 325. The three men after committing the crime went to her house and dumped the money on the bed, she assisted them in counting the money and kept some for herself. Id. at 325. This court stated even if she knew that the three men were going to commit the crime she did not participate in the crime. Id. at 325. The woman had to do more than just know that a crime was being committed, there had to be a voluntary participation on her part otherwise she could not be held liable as an accomplice.

The problem with the preceding cases is that at the time they were decided the statute that pertained to accomplice liability was silent as to a mens rea requirement. A.S. 12.15.010 (repealed by Ch. 166, s 21, SLA 1978, effective January 1, 1980). “All persons concerned in the commission of the crime, whether they directly commit the act constituting the crime or, though not present, aid and abet in its commission, shall be prosecuted, tried and punished as principals.” Id. This court failed to explain why they were able to read a mens rea requirement into A.S. ?12.15.010, when the statute did not specifically state one.

The Alaskan criminal code due to its codification of common-law, allowed this court to interpret that an accomplice has to have the specific intent to aid, abet or participate in a criminal act. In Tarnef v. Alaska, 512 P.2d 923 (Alaska 1973), this court had to decide whether the arson statute which contained the words aids, procures or counsels, was unconstitutional because there was no mens rea requirement. This court concluded that these words meant aid and abet, as in A.S. ?12.15.010, which was defined as “…help, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bring it about, or encourage, counsel, or incite as to its commission. Thomas v. State, 391 P.2d 18, 25 (Alaska 1964) quoted in 512 P.2d 923,928. Since that portion of the arson statute pertains to accomplice behavior, lacks a mens rea requirement and the punishment is the same for the principal and the accomplice, as a felony it is a basic premise that if the statute lacks a mens rea requirement the statute is unconstitutional. Id. at 512 P.2d 923, 929. Given at the time Alaska followed common law:

it is true that one will sometimes find felony statutes that are silent on

the subject of criminal intent. But these are instances where the states

have codified the common law of crimes, and their courts have assumed

that the omission of the requirement of criminal intent did not signify

disapproval of the principle but merely recognized that intent was so inherent

in the idea of the offense that it needed no statutory affirmation. Thus, as to

felony type offenses codified from common law, the courts have found an implication of intent.

Spiedel v. State, 460 P.2d 77, 79 (Alaska 1969) quoted in 512 P.2d 923, 929. Because of this implication this court held, “it is well established under common law and in Alaska that a person cannot be convicted of aiding and abetting a crime unless he had the specific criminal intent to bring about the illegal end.” Id. at 928. This decision changed the language that Mahle used to define accomplice liability but still held that one has to have the specific criminal intent to bring about the illegal end. However, this decision did not clarify what exactly the nature of intent was but it does illustrate why this court had the power to interpret a mens rea requirement for an accomplice.

In Hensel v State, 604 P.2d 222, (Alaska 1979), the last time this issue was brought to this court, it precisely stated what was the nature of the mens rea requirement of an accomplice. The court held that “…liability for the crime of another will attach only upon a showing that an individual had knowledge of the criminal enterprise and specifically intended, by his conduct to aid, abet, assist or participate in the criminal enterprise.” Id at 234. The two-prong test is that liability will not attach upon knowledge alone, the individual must also have had “the specific criminal intent to bring about the illegal end. Id. at 234. The intent therefore is “…conduct voluntarily undertaken for the purpose of participating or assisting in the completion of the crime.” Evans v. State, 550 P.2d 830, 841 (Alaska 1976).

From 1962 to 1979, this court had ample opportunity to interpret what the culpable mental state for an accomplice should be in Alaska. Although the language changed throughout the years this court has firmly held that one has to have knowledge and specific intent in order to be liable as an accomplice. Nowhere in any of the opinions from 1962 to 1979 even imply that one can be an accomplice if their culpable mental state is any less than knowledge and specific intent.

B. Plain reading, legislative history and case law of the accomplice liability statute in Alaska illustrate that one has to have the required specific intent to promote or facilitate the commission of the offense.

In 1978 the legislature revised the criminal code and from present appeals court decisions and statutory interpretation it is evident that the legislature wanted to codify prior case law and the common law definition for who can be an accomplice. When interpreting a statute the Supreme Court of Alaska “does not adhere to the plain meaning rule of statutory interpretation, but rather, relies on a sliding scale approach even if a statute is plainly worded; since words are necessarily inexact and ambiguity is a relative concept, Supreme Court turns to legislative history, mindful that the plainer the language, the more convincing contrary legislative history must be.” Romann v. State, 991 P.2d 186 (Alaska 1999).

The plain reading of A.S. ?11.16.110(2)(B) on its face does not seem to be ambiguous one cannot be an accomplice to a crime if their culpable mental state is reckless. The statute in question states, “a person is legally accountable for the conduct of another constituting an offense if, with intent to promote or facilitate the commission of the offense, the person, aids or abets the other in planning or committing the offense.” (emphasis added) A.S. ?11.16.110(2)(B). Under Alaskan law a person acts with intent “with respect to the result described by a provision of law defining an offense when the person’s conscious objective is to cause the result.” A.S. 11.81.900(a)(1). A plain reading of the statute would be that one has to have the conscious objective to promote or facilitate the offense. Furthermore, according to the Oxford Dictionary and Thesaurus 298 (American Edition 1996), conscious is defined as aware and aware is defined as having knowledge. The definition of objective is something sought or aimed at. Id. at 1026. A reading of A.S. ?11.16.110 with these definitions would be that one having knowledge has sought or aimed to promote or facilitate the offense. This plain reading of the statute is consistent with the interpretations of the Supreme Court of Alaska.

In Echols v. State, 818 P.2D 691 (Alaska Ct. App. 1991), the court interpreted A.S. ?11.16.110(2(B) in light of a plain reading and legislative intent. The defendant appealed the trial court’s instruction to the jury that it could convict her if she acted recklessly regarding the results of the principal’s conduct under A.S. ?11.16.110. Id. at 695. The court held that the trial court did err because it was clear from the plain language of A.S. ?11.16.110 and the legislative history of that statute, that in order to convict her as an accomplice, the state must prove that she intended to promote or facilitate the commission of the offense. Id. at 695. The court first stated that the plain language of the statute “…seems to indicate that the accomplice must intend the commission of the particular crime charged.” Id. at 692, See Ashenfelter v. State, 988 P.2d 120, 125 (Alaska Ct. App. 1999, Erickson v. State, 824 P.2d. 725, 730 (Alaska Ct. App. 1991). A defendant’s complicity is not established unless the state proves that the defendant acted with intent to bring about the specified result. There is no such thing as reckless accomplice behavior.

Furthermore, the court relied on the legislative history of A.S. ?11.16.110 in order to determine the legislative intent behind this statute. There is no concrete history for the present code but the court relied on commentary from the tentative draft of the Alaska Criminal Code revision. The commentary states, “Subsection (2) codifies the current case law that one is liable as a traditional ‘accomplice’ if he acts ‘with intent to promote or facilitate the commission of the offense’.” Alaska Criminal Code Revision Part II, at 31 (Tent. Draft 1977) (citations omitted) quoted in 818 P.2d 691, 692. This comment is persuasive because prior to the revision every time the Supreme Court of Alaska defined the mens rea requirement for an accomplice it stated that one has to have the specific intent to promote or facilitate the offense. See, Mahle v. State, 371 P.2d 21, 25 (Alaska 1962), Daniels v. State, 383 P.2d 323, 324 (Alaska 1963), Taylor v. State, 391 P.2d 950 (Alaska 1964), Fajerak v. State, 439 P.2d 783, 788 (Alaska 1968), Flores v. State, 443 P.2d 73, 78 (Alaska 1968), Beavers v. State, 492 P.2d 88, 97 (Alaska 1971).

The legislature never intended to adopt MODEL PENAL CODE ?2.06(4) (1962) (MPC). The legislature when it revised the criminal code of Alaska in 1978 did adopt certain MPC provisions. Section 2.06(4) allows for one to be an accomplice “…if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.”. Under this provision one can be an accomplice if he just acts recklessly. Since A.S. ?11.16.110 does not contain this provision this court cannot hold this to be the law of the State. If the legislature saw fit to adopt this clause they would have as they did for A.S. ?11.16.110(3). What the legislature did do was codify the law that this court had interpreted and consistently held for 17 years. When the legislature codified the law they made sure that there was a mens rea requirement included in the statute, which was missing prior to the revision. This court does not have the power to make law it only has the power to interpret the statute according to the sliding scale approach. t

In accordance with the sliding scale approach there is no other interpretation for A.S. ?11.16.110: one has to have the specific intent to promote or facilitate the offense. Furthermore, a statute will not be modified or extended by court where a statute’s language is clear and legislative history reveals no ambiguity. See Lewis v. State, 892 P.2d 175 (Alaska 1995). From a plain reading, legislative history and case law it is obvious that under A.S. ?11.16.110, there is no such thing as reckless accomplice behavior.

C. If one is held to be an accomplice to an unintentional crime when they did not have the specific intent to promote or facilitate the offense it will lead to bad public policy.

If the Appeals Court’s decision is upheld it will set bad public policy. In the Appeals Court’s decision the court stated, “it is our hope, however, that this case will make the people realize the seriousness of driving while intoxicated.” (R. at 17). In what way, does this deter people from driving while intoxicated? This decision has no affect on the person who is driving the car. This decision extends Alaskan law to every man and woman of this state no matter if they drink or not. This court should note the interest of society in deterring criminals must be balanced against the interest of the individual being free unless found legally responsible. A basic premise in criminal law is that one should be liable only for one’s personal guilt. It makes no sense to uphold a rule that could convict an accomplice for intentionally aiding in a crime that a principal was unaware that he was committing. What this may do is “…burden peoples’ actions with doubts and worries about what someone might culpably do as a consequence of their own lawful actions.” Sanford H. Kadish, Reckless Complicity, 87 J. Crim. L. & Criminology 369 (1997). The accomplice liability statute is not only aimed at people who drive while intoxicated, it is a statute that applies to all crimes in Alaska. This court must adopt a rule that is most persuasive in light of precedent, reason, and policy. See American Computer Institute v. State, Nos. S-8664, S-8694, 5235, 2000 WL 146847 (Alaska 2000). Otherwise, the law would criminalize everyday behavior.

II. THE MOTHER WAS NOT THE LEGAL CAUSE OF HER CHILDREN’S DEATH, WHEN SHE PERMITTED THE FATHER TO TAKE THE CHILDREN IN HIS CAR WHEN HE WAS DRUNK.

The Court of Appeals erred when it held that there was sufficient evidence of causation to support the conviction of Mrs. Benis as a principal to manslaughter, pursuant to A.S. ?11.41.120. This court reviews a trial court’s evidentiary rulings for abuse of discretion. See Smithart v. State, 988 P.2d 583, 586 (Alaska 1999). In American Computer Institute v. State, Nos. S-8664, S-8694, 5235, 2000 WL 146847 (Alaska 2000), this court stated, “to reverse, the court must have a definite and firm conviction that a mistake has been made.” Id. at 2.

The general rule in Alaska is that in every criminal case the prosecution must establish and the jury must find that the defendant’s conduct was the actual cause and the proximate cause of the crime charged in the indictment. The defense does not contest that Mrs. Benis’s failure to act was the actual cause of her children’s death. The defense does contest whether there was sufficient evidence to find that Mrs. Benis was the proximate cause of her children’s death. In Wren v. State, 577 P.2d 235 (Alaska 1978), this court affirmed an instruction on proximate cause which stated, “[t]he proximate cause is that cause which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces the result which the result would not have occurred.” Id. at 240. The defense believes that it has presented enough evidence to show that there was an intervening cause that broke the natural and continuous sequence. If this court finds that this is true than Mrs. Benis’s failure to act, as a matter of law, was not the proximate cause and her conviction should be reversed.

The death of Mrs. Benis’s children was not foreseeable when she let her children get into the car with her husband. The test in Alaska is not that a person has to be the sole factor in producing the death, but the defendant’s conduct has to be a substantial factor in bringing about death. See Brown v. State, Nos. A-6439, 3815, 1998 WL 224920, at 1, 2 (Alaska Ct. App. 1998). However, a defendant’s criminal responsibility is not limitless. In State v. Malone, 819 P.2d 34 (Alaska Ct. App. 1991), the court stated,

The law does not hold a defendant responsible if the injury or death,

while perhaps linked to the defendant’s conduct, is primarily caused

by abnormal, unforeseeable conduct on the part of the victim or of a

third person, so that it no longer seems fair to say that the injury was

‘caused’ by the defendant’s conduct.

Id. at 37. The law acknowledges that in some circumstances there are “situations in which the second act of negligence looms so large in comparison with the first that the first is not to be regarded as a substantial factor in the final result.” R. Perkins & R. Boyce, Criminal Law (3rd ed. 1982), ? 9, p. 787, quoted in 819 P.2d. 34, 37.

In Malone, the defendant led police on a high-speed chase through public streets. While the police were in pursuit of the defendant, the police car collided with a vehicle driven by another motorist; both the officer and the motorist were injured. Id. at 35. On appeal, the defendant claimed that the collision could have been due to the police officers or the other motorist’s negligent conduct. Id. at 35. The defendant did not point to any evidence of the police officer’s or other motorist’s negligence. Id. at 35. The court stated that even though all drivers are required to exercise care for the safety of other motorists, a situation such as a high-speed chase alleviates the strictness of that care. It is natural and foreseeable that, under the stress of the situation, police officers may engage in driving that fails to satisfy the standard of care and uninvolved motorists may either fail to react or may react with less than normal prudence. Id. at 38. The court held that even if it is believed that the police officer’s or the other motorist’s conduct was negligent, this negligence was a foreseeable result of the defendant’s conduct. Id. at 38. Furthermore, there was no evidence in the record to illustrate that the police officer or the other motorist caused the collision by engaging in extraordinary, unforeseeable conduct. Id. at 38.

In contrast to Malone, there is evidence in this case purporting to extraordinary, unforeseeable conduct by a third party. On October 10, 1999, Mr. Peterman came to Mrs. Benis’s house to pick up the children. Mrs. Benis testified that she did not know that her husband was intoxicated when he picked up the children. (R. at 12). Evidence in support of this statement is that due to prior drunk driving incidents Mr. Peterman had a breath-analyzing device installed in his car. (R. at 16). This device is designed to keep a drunken driver from starting a car. (R. at 16). The system requires a driver to breathe into a device and register a clean breath before the ignition unlocks. (R. at 16). The driver is also subject to rolling retests during the trip to make sure the driver is alcohol free. (R. at 16). If alcohol is registered, the vehicle’s horn honks nonstop until the vehicle is stopped. (R. at 16). Mrs. Benis would be able to assume that since Mr. Peterman was able to drive his car to her house, he must have passed the breath-analyzing test in his car. The defense is not contesting whether Mrs. Benis knew if her husband was drunk. In any event, Mrs. Benis knows that a natural and foreseeable consequence of letting her children drive with someone who is intoxicated can be death. However, in this situation testimony from Maggie O’Connell indicates that Mr. Peterman had his daughter Sarah blow into the tube for him before the car drove off. (R. at 2).

The difference between Malone and this case are results or reactions that are natural and foreseeable from the defendant’s conduct and results or reactions that are not. In Malone, the court held that the police officer and other motorist’s conduct was a normal reaction to the high-speed chase that the defendant’s conduct initiated. The defendant also did not offer evidence to show that the third party’s negligence was extraordinary, unforeseeable conduct. Similarly to Malone, Mrs. Benis could foresee her husband getting into an accident if he drove while intoxicated and it is a foreseeable result that her children could die if she let them go in the car with him while he was drunk. However, in this case it is extraordinary and unforeseeable that a father would have his ten-year old daughter, Sarah, break the law, by blowing into the breath-analyzing device so that he could illegally drive his car intoxicated. Unlike in Malone, where the third party’s conduct was a normal reaction and foreseeable result from the high-speed chase, a father having his kid break the law is neither normal or foreseeable from a mother failing to stop her children from getting in the car with their father. The distinction is that the defendant in Malone would still be convicted if no one had gotten injured and nothing could have been done to Mrs. Benis. Therefore, in accordance with Malone this court must hold that the defense presented enough evidence to show that when Mr. Peterman had his daughter commit a criminal act by blowing into the tube, it was not a natural and foreseeable reaction to Mrs. Benis’s failure to act.

The defense has presented sufficient evidence to illustrate that the extraordinary, unforeseeable conduct of Mr. Peterman having his daughter commit a criminal act is, as a matter of law, a superseding or intervening cause that excuses Mrs. Benis from liability. In Kusmider v. State, 688 P.2d 957 (Alaska Ct. App. 1984), the defendant went to the house of his girlfriend’s acquaintance, an altercation arose and the defendant shot the acquaintance. Id. at 958. After the paramedics had inserted a tube into the acquaintance’s throat on the ambulance, the acquaintance started to flail his arms and pulled the tube from his throat. He died at the hospital. Id. at 958. The defendant claimed that the jury should have been allowed to consider whether the paramedics failure to restrain the acquaintance’s arms constituted an intervening or superseding cause of death. Id. at 958. The only evidence the defendant offered was that the paramedics who treated the acquaintance might have been negligent in failing to restrain the acquaintance’s arms. Id. at 959. The defendant did not argue that he could have presented evidence that the paramedic’s behavior inflicted any new injuries on the acquaintenance; he relied on their failure to act. Id. at 960. Since the defendant never offered proof that the paramedics failure to act was grossly negligent or that the results were unforeseeable because they inflicted new injuries, the evidence was insufficient to illustrate that their conduct was an intervening cause. Id. at 959-60. It was evident that the gunshot fired by the defendant remained a substantial factor in causing the acquaintenance’s death. Id. at 960.

On the contrary, in this case the defense has presented evidence to illustrate that after the husband had the daughter blow in to the tube, Mrs. Benis did not remain a substantial factor in causing her children’s death. Comparing Kusmider and Mrs. Benis we see similarities and differences. Mrs. Benis failing to stop her kids from getting in the car with her husband while he was drunk is similar to the defendant in Kusmider firing a shot at the acquaintance. In both cases, Mrs. Benis knew that death could result from her action and so did the defendant in Kusmider. The difference is in the conduct of the third party. In Kusmider the paramedics failed to restrain the acquaintenance’s arms but there was no evidence to illustrate that this failure aggravated the injuries caused by the gunshot. In this case after Mrs. Benis acted, testimony indicates that the father affirmatively had the daughter blow into the tube so that he could operate the automobile. (R. at 2). The legal significance is even if the paramedics restrained the acquaintenance’s arms the defendant’s gunshot would still have been a substantial factor in causing the death. However, in this case if the father were the one who blew into the tube he wouldn’t have been able to drive the car. In this case the evidence illustrates that once Mr. Peterman had his daughter blow into the tube Mrs. Benis was no longer the substantial factor. If the husband had blown into the tube the car wouldn’t have started and there would have been no accident. Therefore, under Kusmider the court would find that the evidence was sufficient to show grossly negligent and unforeseeable conduct that constitutes an intervening cause and interrupts the chain of proximate causation.

In conclusion, this court must reverse the lower court’s decision because the defense presented sufficient evidence to illustrate that Mrs. Benis was not the proximate cause of her children’s death. Once Mr. Peterman had his daughter blow into the tube, it was extraordinary, unforeseeable conduct that did not occur as a normal reaction nor was it foreseeable from Mrs. Benis’s conduct. The courts in Malone and Kusmider, as a matter of law, would hold that the conduct of Mr. Peterman constituted a superseding or intervening cause that interrupted the chain of proximate cause.

Conclusion

Case precedent, legislative history, statutory interpretation and public policy all support a finding that the Supreme Court of Alaska should uphold the law of the land: one has to have the specific intent to promote or facilitate the offense. Furthermore, the defense has presented sufficient evidence to illustrate that Mrs. Benis was not the legal cause of her children’s death.

Respectfully Submitted

Attorney for the Appellant

April 3, 2000