Read the cases and answer the questions using the reading. 

On March 11, 2014, a jury convicted Myah Evans Batie of domestic violence in violation of R.C. 2919.25(A) with a prior conviction specification. The charge arose out of a physical altercation between Batie and her husband, where the husband called 911 for assistance. Batie appealed. The Ohio Court of Appeals affirmed.

[On direct examination, Officer Todd Simpson testified as follows at Myah Evans Batie’s trial:] Q. And when you respond to a domestic violence call, is it your duty to determine who is the primary physical aggressor? A. Yes, it is. Copyright 2017 Ccngagc Learning. Alt Rights Reserved . May not be copied, scanned. or duplicated. in whole or in part. Due to electronic rights, some third party content may be suppressed from the cBook and/or eChapter(s) Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Leaming reserves the right to remove additional content at any time if subsequent rights restrictions require it Q. Based on your conversation in speaking with the victim … outside, in speaking with the defendant inside, your observations, what did you conclude? A. The observations of the evidence proved that Miss BatieDefense Counsel: Objection. The Court: Overruled. A. Miss Evans started the disturbance, continued and assaulted and injured her husband. Q. And what was your basis for coming to that conclusion? A. His bruising obviously on his face, the scratches, bite marks on his arm, and I think his leg.

A claim of self-defense requires the defendant prove by a preponderance of the evidence that ( 1) she “was not at fault in creating the situation giving rise to the affray” ; (2) that she “had a bona fide belief that she was in imminent danger of death or great bodily harm and that her only means of escape from such danger was in the use of such force;” and (3) “that she did not violate any duty to retreat or avoid danger.”

The first prong of the test asks, in essence, whether the defendant was the initial aggressor. While the primary physical aggressor inquiry is not necessarily the same as whether a person was the initial aggressor, the primary aggressor question can nonetheless undermine a claim of self-defense. This is especially true when an officer’s testimony goes beyond the primary aggressor inquiry and treads into the realm of who initiated the altercation. That is exactly what happened in this case.

A careful review of the record in this case establishes that Officer Simpson did opine on an ultimate issue in the domestic violence defense. When asked what conclusions he drew based on his observations, Simpson responded by saying that the observations of the evidence proved that Batie “started the disturbance, continued, and assaulted and injured,” her husband (emphasis added). Simpson did not simply testify as to the reason why he treated Batie as the primary physical aggressor and choose to proceed with charging her-testimony that would otherwise be admissible. Rather, Simpson asserted that his observations proved Batie started the affray. This is exactly the type of improper testimony that must be omitted from trial, and we find that the trial court abused its discretion by allowing it.

Notwithstanding our determination that the trial court abused its discretion, we must nevertheless overrule the assignment of error because the testimony amounted to harmless error. Any error, defect, irregularity or variance which does not affect the substantial rights of the defendant shall be disregarded. The term “substantial rights” has been interpreted to require that the error be prejudicial-that is that it must have affected the outcome of the trial court proceedings.

Here, it cannot be said that allowing the testimony resulted in prejudice to the defendant. At trial, the state introduced numerous photographic exhibits detailing the extent of the husband’s injuries. Many of these exhibits detailed what appeared to be numerous, severe, scratch marks down the length of the husband’s face. The photos also depicted a large burn mark on his forearm- which corroborated the husband’s testimony that Batie attacked him with a hot iron. Other photos depicted what appeared to be bite marks on the husband’s upper arm, and pictures showing a bloody, swollen lip. Further, Simpson testified that when he arrived at the Batie household, the appellant did not have any visible marks on her that would indicate that her husband had been physical with her. In fact, the only evidence supporting Batie’s claim that she was acting in self-defense, was her own trial testimony. Therefore, even if the trial court had excluded Simpson’s improper testimony, it cannot be said that the exclusion would have had any effect on the outcome of the case.

Batie [also] argues that the jury’s verdict was against the manifest weight of the evidence. In a manifest weight analysis, an appellate court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and … resolves conflicts in the evidence. An appellate court may not merely substitute its view for that of the jury, but must find that the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

When analyzing a manifest weight challenge, appellate courts must give special deference to the conclusion reached by the trier of fact. Accordingly, reversal on manifest weight grounds is reserved for the exceptional case in which the evidence weighs heavily against the conviction.

We cannot say that this is the exceptional case that warrants reversal because the jury clearly lost its way. While contradictory testimony was presented by both the victim and the defendant at trial, the pictures of the victim’s injuries, together with the fact that Officer Simpson testified that there was not a mark on the appellant, is enough for a jury to conclude that Batie committed an act of domestic violence against her husband and was not acting in self-defense. Batie’s second assignment of error is also overruled. Judgment affirmed.

Questions

1. List all the facts relevant to deciding whether Myah Batie was the initial aggressor.

2. Summarize the court’s arguments to support its decision.

3. According to the court, what’s the difference between a “primary physical aggressor” and an “initial aggressor”?

4. Do you agree that Myah Batie was the original or primary aggressor? Defend your answer.

5. Explain how the court found Myah the primary aggressor, and therefore her husband was not guilty. Do you agree? Defend your answer.

Charles E. Haynes (Defendant-Appellant) entered a conditional plea of guilty in the United States District Court for the Western District of Wisconsin, to assault. Haynes appealed. The Court of Appeals affirmed.

Nelson Flores-Pedroso was playing dominoes after lunch in the cafeteria of the federal prison in Oxford, Wisconsin, when Charles Haynes emerged from the kitchen and poured scalding oil on his head. Severely burned over 18 percent of his body, Flores-Pedroso is disfigured for life. Haynes pleaded guilty to assault, and was sentenced to 33 months’ imprisonment (consecutive to the ten-year term he was serving for a drug offense). The guilty plea reserved the right to argue on appeal that the district judge erred in foreclosing Haynes from arguing to the jury that the attack was justified as a measure of self-defense.

Self-defense? How can a sneak attack be self-defense? Haynes made an offer of proof that Flores-Pedroso was a bully who had a reputation for coercing smaller inmates (such as Haynes) to provide favors of all kinds-food, commissary items, and sex. About a month before the incident in the cafeteria, Flores-Pedroso began pressuring Haynes to use Haynes’ position as a food preparer in the kitchen to do favors for him. Haynes refused, and in response Flores-Pedroso threatened to make Haynes his “bitch” (homosexual plaything).

For the next month stare downs and jostling occurred, while Flores-Pedroso kept up a stream of threats. One time Flores-Pedroso cornered Haynes in a bathroom, and Haynes thought that rape was imminent, but another inmate entered and Flores Pedroso left.

A day before Haynes poured the oil, Flores-Pedroso picked up Haynes and slammed him to the ground within sight of a guard, who did nothing. On the day of the oil incident, Flores-Pedroso told Haynes that as soon as food service was closed for the afternoon he would “finish what he started.” Haynes contends that he believed that he would be attacked as soon as he left the cafeteria, and that he struck first in order to protect himself.

Under the law of the jungle a good offense may be the best defense. But although prisons are nasty places, they are not jungles-and it is the law of the United States rather than Hobbes’ state of nature that regulates inmates’ conduct. Haynes concedes that he never reported Flores-Pedroso to the guards or sought protection-protection a prison is constitutionally obliged to provide. Haynes asserted in his offer of proof: He could not go to “the police” – a term used to describe the guards. If the guards elected to take him out of population, he would be forced to stay in administrative segregation which meant 24-hour-per-day lock-up. If his protective custody status resulted in a transfer, all the inmates of the receiving institution would know that he was in protective custody, for being victimized by another inmate and by being a “snitch,” which would result in further victimization and perhaps invite an assault by not just one inmate, but several. If Haynes went to the guards and they did not believe him and left him in population, things would only get worse. He would certainly be attacked, not only by [Flores] Pedroso, but by others who labeled him a “snitch.” Haynes did not believe he could go to the guards and help himself in any appreciable way.

In other words, Haynes did not fancy the prospect of administrative segregation, feared the consequences of appearing to be an informer, and decided that it was better to take matters into his own hands. What his claim of self-defense comes down to is the proposition that an inmate is entitled to attack and maim a prison bully even if there is ample time to report the threats and obtain protection from the guards.

The district court ruled that Haynes would not be allowed to argue self-defense or inform the jury about Flores-Pedroso’s threats. The evidence and line of defense Haynes wanted to pursue, as the district court saw things, was just a request for jury nullification-a plea to jurors to let the Davids of federal prisons smite the Goliaths, to give the predators a taste of their own medicine, without legal consequences. The judge ruled that an inmate must use available, lawful options to avoid violence, even if they find those options unpalatable. Haynes asks us to hold that the existence of lawful alternatives is irrelevant to a claim of self-defense.

All doubts about the role of lawful alternatives to one side, it is hard to see how Haynes’ offer of proof conforms to the normal understanding of selfdefense: a use of force necessary to defend against an imminent use of unlawful force. Haynes was not faced with an imminent use of force by FloresPedroso. There was a threat of action later that afternoon, but Flores-Pedroso had made unfulfilled threats before, and anyway “later” and “imminent” are opposites.

A judge may, and generally should, block the introduction of evidence supporting a proposed defense unless all of its elements can be established. But we need not dwell on timing, because we agree with the district judge’s reason: absence of lawful alternatives is an element of all lesser-evil defenses [ see “Choice of Evils,” on p. 192], of which self-defense is one. When A threatens B, and B hits A, the defense receives the name “self-defense.” When A threatens C, and B hits A, the name is “defense of another.”

But in all of these cases, the defense fails if the use of force was unjustified. This is the idea behind the “imminence” requirement (if the threat is not imminent, a retreat or similar step avoids injury) as well as the requirement that the object of the threat prefer a lawful response to an unlawful one.

Prisons collect violent persons who have little respect for the law, which makes them hard to control without the use of devices such as segregation that are unpleasant in their own right. If prisoners could decide for themselves when to seek protection from the guards and when to settle matters by violence, prisons would be impossible to regulate. The guards might as well throw the inmates together, withdraw to the perimeter, and let them kill one another, after the fashion of the movie Escape from New York (1981).

Perhaps Haynes was hoping that a jury would have this view of the right way to manage prisons. But it is not the view reflected in the United States Code or the United States Constitution. A prisoner who requests protection from the guards without success (or who lacks time to do so) may defend himself with force proportioned to the threat. But Haynes, who listened to Flores-Pedroso’s menaces for a month without seeking help, had no conceivable justification for a preemptive strike. The district judge correctly barred Haynes from making his proposed defense. Affirmed.

1. List the facts and circumstances relevant to deciding whether Charles Haynes was entitled to the defense of self-defense.

2. State the court’s definition of “imminent” danger.

3. Summarize the court’s arguments for ruling against imminent danger.

Bernhard Goetz (defendant) was indicted for criminal possession of a weapon, attempted murder, assault, and reckless endangerment. The Supreme Court, Trial Term, New York County, dismissed the indictment and the People appealed. The Supreme Court, Appellate Division affirmed, and the People appealed. The Court of Appeals reversed and dismissed, and reinstated all the counts of the indictment.

On Saturday afternoon, December 22, 1984, Troy Canty, Darryl Cabey, James Ramseur, and Barry Allen boarded an IRT express subway train in the Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, Ramseur and Cabey, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.

Bernhard Goetz boarded this subway train at 14th Street in Manhattan and sat down on a bench toward the rear section of the same car occupied by the four youths. Goetz was carrying an unlicensed .38-caliber pistol loaded with five rounds of ammunition in a waistband holster. The train left the 14th Street station and headed toward Chambers Street.

Canty approached Goetz, possibly with Allen beside him, and stated, “Give me five dollars.” Neither Canty nor any of the other youths displayed a weapon. Goetz responded by standing up, pulling out his handgun, and firing four shots in rapid succession. The first shot hit Canty in the chest; the second struck Allen in the back; the third went through Ramseur’s arm and into his left side; the fourth was fired at Cabey, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor’s cab.

After Goetz briefly surveyed the scene around him, he fired another shot at Cabey, who then was sitting on the end bench of the car. The bullet entered the rear of Ca bey’s side and severed his spinal cord.

All but two of the other passengers fled the car when, or immediately after, the shots were fired. The conductor, who had been in the next car, heard the shots and instructed the motorman to radio for emergency assistance. The conductor then went into the car where the shooting occurred and saw Goetz sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparently taken cover, also laying on the floor.

Goetz told the conductor that the four youths had tried to rob him. While the conductor was aiding the youths, Goetz headed toward the front of the car. The train had stopped just before the Chambers Street station and Goetz went between two of the cars, jumped onto the tracks, and fled.

Police and ambulance crews arrived at the scene shortly thereafter. Ramseur and Canty, initially listed in critical condition, have fully recovered. Cabey remains paralyzed and has suffered some degree of brain damage.

On December 31, 1984, Goetz surrendered to police in Concord, New Hampshire, identifying himself as the gunman being sought for the subway shootings in New York nine days earlier.

Later that day, after receiving Miranda warnings, he made two lengthy statements, both of which were tape recorded with his permission. In the statements, which are substantially similar, Goetz admitted that he had been illegally carrying a handgun in New York City for three years. He stated that he had first purchased a gun in 1981 after he had been injured in a mugging. Goetz also revealed that twice between 1981 and 1984 he had successfully warded off assailants simply by displaying the pistol.

According to Goetz’s statement, the first contact he had with the four youths came when Canty, sitting or lying on the bench across from him, asked, “How are you?” to which he replied, “Fine.” Shortly thereafter, Canty, followed by one of the other youths, walked over to the defendant and stood to his left, while the other two youths remained to his right, in the corner of the subway car.

Canty then said, “Give me five dollars.” Goetz stated that he knew from the smile on Canty’s face that they wanted to “play with me.” Although he was certain that none of the youths had a gun, he had a fear, based on prior experiences, of being “maimed.”

Goetz then established “a pattern of fire,” deciding specifically to fire from left to right. His stated intention at that point was to “murder, to hurt them, to make them suffer as much as possible.” When Canty again requested money, Goetz stood up, drew his weapon, and began firing, aiming for the center of the body of each of the four.

Goetz recalled that the first two he shot “tried to run through the crowd but they had nowhere to run.” Goetz then turned to his right to “go after the other two.” One of these two “tried to run through the wall of the train, but … he had nowhere to go.” The other youth (Cabey) ” tried pretending that he wasn’t with [the others],” by standing still, holding on to one of the subway hand straps, and not looking at Goetz. Goetz nonetheless fired his fourth shot at him.

He then ran back to the first two youths to make sure they had been “taken care of.” Seeing that they had both been shot, he spun back to check on the latter two. Goetz noticed that the youth who had been standing still was now sitting on a bench and seemed unhurt. As Goetz told the police, “I said, ‘you seem to be all right, here’s another,”‘ and he then fired the shot which severed Cabey’s spinal cord. Goetz added that “If I was a little more under self-control. .. I would have put the barrel against his forehead and fired.” He also admitted that “If I had had more [bullets], I would have shot them again, and again, and again.”

After waiving extradition, Goetz was brought back to New York and arraigned on a felony complaint charging him with attempted murder and criminal possession of a weapon. The matter was presented to a grand jury in January 1985, with the prosecutor seeking an indictment for attempted murder, assault, reckless endangerment, and criminal possession of a weapon. Neither the defendant nor any of the wounded youths testified before this grand jury.

On January 25, 1985, the grand jury indicted Goetz on one count of criminal possession of a weapon in the third degree (Penal Law § 265.02) for possessing the gun used in the subway shootings, and two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01) for possessing two other guns in his apartment building. It dismissed, however, the attempted murder and other charges stemming from the shootings themselves.

Several weeks after the grand jury’s action, the People, asserting that they had newly available evidence, moved for an order authorizing them to resubmit the dismissed charges to a second grand jury. Supreme Court, Criminal Term, after conducting an in camera [in the judge’s chambers] inquiry, granted the motion. Presentation of the case to the second Grand Jury began on March 14, 1985. Two of the four youths, Canty and Ramseur, testified. Among the other witnesses were four passengers from the seventh car of the subway who had seen some portions of the incident.

Goetz again chose not to testify, though the tapes of his two statements were played for the grand jurors, as had been done with the first grand jury.

On March 27, 1985, the second grand jury filed a ten-count indictment, containing four charges of attempted murder (Penal Law §§ 110.00, 125.25[1]), four charges of assault in the first degree (Penal Law § 120.10[1]), one charge of reckless endangerment in the first degree (Penal Law§ 120.25), and one charge of criminal possession of a weapon in the second degree (Penal Law § 265.03 [possession of a loaded firearm with intent to use it unlawfully against another]). Goetz was arraigned on this indictment on March 28, 1985, and it was consolidated with the earlier three-count indictment.

On October 14, 1985, Goetz moved to dismiss the charges contained in the second indictment, alleging, among other things, that the prosecutor’s instructions to that grand jury on the defense of justification were erroneous and prejudicial to the defendant so as to render its proceedings defective.

On November 25, 1985, while the motion to dismiss was pending before Criminal Term, a column appeared in the New York Daily News containing an interview which the columnist had conducted with Darryl Cabey the previous day in Cabey’s hospital room. The columnist claimed that Cabey had told him in this interview that the other three youths had all approached Goetz with the intention of robbing him.

The day after the column was published, a New York City police officer informed the prosecutor that he had been one of the first police officers to enter the subway car after the shootings and that Canty had said to him, “We were going to rob [Goetz].” The prosecutor immediately disclosed this information to the Court and to defense counsel, adding that this was the first time his office had been told of this alleged statement and that none of the police reports filed on the incident contained any such information.

In an order dated January 21, 1986, the Court, after inspection of the grand jury minutes held that the prosecutor, in a supplemental charge elaborating upon the justification defense, had erroneously introduced an objective element into this defense by instructing the grand jurors to consider whether Goetz’s conduct was that of a “reasonable man in [Goetz’s] situation.”

The Court concluded that the statutory test for whether the use of deadly force is justified to protect a person should be wholly subjective, focusing entirely on the defendant’s state of mind when he used such force. It concluded that dismissal was required for this error because the justification issue was at the heart of the case. [We disagree.]

Penal Law article 35 recognizes the defense of justification, which “permits the use of force under certain circumstances.” One such set of circumstances pertains to the use of force in defense of a person, encompassing both self-defense and defense of a third person (Penal Law § 35.15). Penal Law § 35.15(1) sets forth the general principles governing all such uses of force: A person may use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably [emphasis added] believes to be the use or imminent use of unlawful physical force by such other person. Section 35.15(2) sets forth further limitations on these general principles with respect to the use of “deadly physical force”: A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless a. He reasonably believes [emphasis added] that such other person is using or about to use deadly physical force or b. He reasonably believes [emphasis added] that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery.

Section 35.15(2)(a) further provides, however, that even under these circumstances a person ordinarily must retreat if he knows that he can with complete safety to himself and others avoid the necessity of using deadly physical force by retreating.

Thus, consistent with most justification provisions, Penal Law § 35.15 permits the use of deadly physical force only where requirements as to triggering conditions and the necessity of a particular response are met. As to the triggering conditions, the statute requires that the actor “reasonably believes” that another person either is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies, including robbery.

As to the need for the use of deadly physical force as a response, the statute requires that the actor “reasonably believes” that such force is necessary to avert the perceived threat. While the portion of section 35.15(2)(6) pertaining to the use of deadly physical force to avert a felony such as robbery does not contain a separate “retreat” requirement, it is clear from reading subdivisions (1) and (2) of section 35 .15 together, as the statute requires, that the general “necessity” requirement in subdivision (1) applies to all uses of force under section 35.15, including the use of deadly physical force under subdivision (2)(6).

Because the evidence before the second Grand Jury included statements by Goetz that he acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to charge the justification defense in section 35.15 to the Grand Jury. The prosecutor properly instructed the grand jurors to consider whether the use of deadly physical force was justified to prevent either serious physical injury or a robbery, and, in doing so, to separately analyze the defense with respect to each of the charges. He elaborated upon the prerequisites for the use of deadly physical force essentially by reading or paraphrasing the language in Penal Law§ 35.15. The defense does not contend that he committed any error in this portion of the charge.

When the prosecutor had completed his charge, one of the grand jurors asked for clarification of the term “reasonably believes.” The prosecutor responded by instructing the grand jurors that they were to consider the circumstances of the incident and determine “whether the defendant’s conduct was that of a reasonable man in the defendant’s situation.” It is this response by the prosecutor-and specifically his use of “a reasonable man”-which is the basis for the dismissal of the charges by the lower courts. As expressed repeatedly in the Appellate Division’s plurality opinion, because section 35 .15 uses the term “he reasonably believes,” the appropriate test, according to that court, is whether a defendant’s beliefs and reactions were “reasonable to him.”

Under that reading of the statute, a jury which believed a defendant’s testimony that he felt that his own actions were warranted and were reasonable would have to acquit him, regardless of what anyone else in defendant’s situation might have concluded. Such an interpretation defies the ordinary meaning and significance of the term “reasonably” in a statute, and misconstrues the clear intent of the Legislature, in enacting section 35.15, to retain an objective element as part of any provision authorizing the use of deadly physical force.

Penal statutes in New York have long codified the right recognized at common law to use deadly physical force, under appropriate circumstances, in selfdefense. These provisions have never required that an actor’s belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, but they have uniformly required that the belief comport with an objective notion of reasonableness [ emphasis added] …. plurality below agreed with defendant’s argument that the change in the statutory language from “reasonable ground,” used prior to 1965, to “he reasonably believes” in Penal Law § 35.15 evinced a legislative intent to conform to the subjective standard.

We cannot lightly impute to the Legislature an intent to fundamentally alter the principles of justification to allow the perpetrator of a serious crime to go free simply because that person believed his actions were reasonable and necessary to prevent some perceived harm. To completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force. It would also allow a legally competent defendant suffering from delusions to kill or perform acts of violence with impunity, contrary to fundamental principles of justice and criminal law.

We can only conclude that the Legislature retained a reasonableness requirement to avoid giving a license for such actions. Statutes or rules of law requiring a person to act “reasonably” or to have a “reasonable belief” uniformly prescribe conduct meeting an objective standard measured with reference to how “a reasonable person” could have acted.

Goetz argues that the introduction of an objective element will preclude a jury from considering factors such as the prior experiences of a given actor and thus require it to make a determination of “reasonableness” without regard to the actual circumstances of a particular incident. This argument, however, falsely presupposes that an objective standard means that the background and other relevant characteristics of a particular actor must be ignored. To the contrary, we have frequently noted that a determination of reasonableness must be based on the “circumstances” facing a defendant or his “situation.” Such terms encompass more than the physical movements of the potential assailant.

As just discussed, these terms include any relevant knowledge the defendant had about that person. They also necessarily bring in the physical attributes of all persons involved, including the defendant. Furthermore, the defendant’s circumstances encompass any prior experiences he had which could provide a reasonable basis for a belief that another person’s intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances.

Accordingly, a jury should be instructed to consider this type of evidence in weighing the defendant’s actions. The jury must first determine whether the defendant had the requisite beliefs under section 35.15, that is, whether he believed deadly force was necessary to avert the imminent use of deadly force or the commission of one of the felonies enumerated therein. If the People do not prove beyond a reasonable doubt that he did not have such beliefs, then the jury must also consider whether these beliefs were reasonable. The jury would have to determine, in light of all the “circumstances,” as explicated above, if a reasonable person could have had these beliefs.

The prosecutor’s instruction to the second Grand Jury that it had to determine whether, under the circumstances, Goetz’s conduct was that of a reasonable man in his situation was thus essentially an accurate charge.

The order of the Appellate Division should be REVERSED, and the dismissed counts of the indictment reinstated.

Questions

1. Consider the following: a. New York tried Goetz for attempted murder and assault. The jury acquitted him of both charges. The jury said Goetz “was justified in shooting the four men with the silverplated .38-caliber revolver he purchased in Florida.” They did convict him of illegal possession of a firearm, for which the court sentenced Goetz to one year in jail. b. Following the sentencing, Goetz told the court: “This case is really more about the deterioration of society than it is about me …. I believe society needs to be protected from criminals.” Criminal law professor George Fletcher followed the trial closely. After the acquittal, he commented: The facts of the Goetz case were relatively clear, but the primary fight was over the moral interpretation of the facts … .I am not in the slightest bit convinced that the four young men were about to mug Goetz. If he had said, “Listen buddy, I wish I had $5, but I don’t,” and walked to the other side of the car the chances are 60-40 nothing would have happened. Street-wise kids like that are more attuned to the costs of their behavior than Goetz was. (qtd. in Roberts 1989) If Professor Fletcher is right, was Goetz justified in shooting?

2. Under what circumstances can people use deadly force, according to the New York statutes cited in the opinion?

3. Do you agree with those circumstances?

4. Would you add more? Remove some? Which ones? Why?

5. Were Goetz’s shots a preemptive strike? Retaliation? Necessary for self-protection? Defend your answer.

Peggy Stewart (Defendant) was charged with murder in the first degree of her husband. The Butler District Court, entered verdict of not guilty. The prosecution appealed with a question reserved. The Supreme Court (5-2) held that the statutory justification for the use of deadly force in self-defense did not excuse a homicide committed by a battered wife where there was no evidence of deadly threat or imminent danger contemporaneous with killing, sustained the Appeal.

Following an annulment from her first husband and two subsequent divorces in which she was the petitioner, Peggy Stewart married Mike Stewart in 1974. Evidence at trial disclosed a long history of abuse by Mike against Peggy and her two daughters from one of her prior marriages. Laura, one of Peggy’s daughters, testified that early in the marriage Mike hit and kicked Peggy, and that after the first year of the marriage Peggy exhibited signs of severe psychological problems. Subsequently, Peggy was hospitalized and diagnosed as having symptoms of paranoid schizophrenia; she responded to treatment and was soon released. It appeared to Laura, however, that Mike was encouraging Peggy to take more than her prescribed dosage of medication.

In 1977, two social workers informed Peggy that they had received reports that Mike was taking indecent liberties with her daughters. Because the social workers did not want Mike to be left alone with the girls, Peggy quit her job. In 1978, Mike began to taunt Peggy by stating that Carla, her 12-year-old daughter, was “more of a wife” to him than Peggy.

Later, Carla was placed in a detention center, and Mike forbade Peggy and Laura to visit her. When Mike finally allowed Carla to return home in the middle of summer, he forced her to sleep in an un-air conditioned room with the windows nailed shut, to wear a heavy flannel nightgown, and to cover herself with heavy blankets. Mike would then wake Carla at 5 :30 A.M. and force her to do all the housework. Peggy and Laura were not allowed to help Carla or speak to her.

When Peggy confronted Mike and demanded that the situation cease, Mike responded by holding a shotgun to Peggy’s head and threatening to kill her. Mike once kicked Peggy so violently in the chest and ribs that she required hospitalization. Finally, when Mike ordered Peggy to kill and bury Carla, she filed for divorce. Peggy’s attorney in the divorce action testified in the murder trial that Peggy was afraid for both her and her children’s lives.

One night, in a fit of anger, Mike threw Carla out of the house. Carla, who was not yet in her teens, was forced out of the home with no money, no coat, and no place to go. When the family heard that Carla was in Colorado, Mike refused to allow Peggy to contact or even talk about Carla.

Mike’s intimidation of Peggy continued to escalate. One morning, Laura found her mother hiding on the school bus, terrified and begging the driver to take her to a neighbor’s home. That Christmas, Mike threw the turkey dinner to the floor, chased Peggy outside, grabbed her by the hair, rubbed her face in the dirt, and then kicked and beat her.

After Laura moved away, Peggy’s life became even more isolated. Once, when Peggy was working at a cafe, Mike came in and ran all the customers off with a gun because he wanted Peggy to go home and have sex with him right that minute. He abused both drugs and alcohol, and amused himself by terrifying Peggy, once waking her from a sound sleep by beating her with a baseball bat. He shot one of Peggy’s pet cats, and then held the gun against her head and threatened to pull the trigger. Peggy told friends that Mike would hold a shotgun to her head and threaten to blow it off, and indicated that one day he would probably do it.

In May 1986, Peggy left Mike and ran away to Laura’s home in Oklahoma. It was the first time Peggy had left Mike without telling him. Because Peggy was suicidal, Laura had her admitted to a hospital. There, she was diagnosed as having toxic psychosis as a result of an overdose of her medication. On May 30, 1986, Mike called to say he was coming to get her. Peggy agreed to return to Kansas. Peggy told a nurse she felt like she wanted to shoot her husband. At trial, she testified that she decided to return with Mike because she was not able to get the medical help she needed in Oklahoma.

When Mike arrived at the hospital, he told the staff that he “needed his housekeeper.” The hospital released Peggy to Mike’s care, and he immediately drove her back to Kansas. Mike told Peggy that all her problems were in her head and he would be the one to tell her what was good for her, not the doctors. Peggy testified that Mike threatened to kill her if she ever ran away again. As soon as they arrived at the house, Mike forced Peggy into the house and forced her to have oral sex several times.

The next morning, Peggy discovered a loaded .357 magnum. She testified she was afraid of the gun. She hid the gun under the mattress of the bed in a spare room. Later that morning, as she cleaned house, Mike kept making remarks that she should not bother because she would not be there long, or that she should not bother with her things because she could not take them with her. She testified she was afraid Mike was going to kill her.

Mike’s parents visited Mike and Peggy that afternoon. Mike’s father testified that Peggy and Mike were affectionate with each other during the visit. Later, after Mike’s parents had left, Mike forced Peggy to perform oral sex. After watching television, Mike and Peggy went to bed at 8:00 P.M. As Mike slept, Peggy thought about suicide and heard voices in her head repeating over and over, “kill or be killed.” At this time, there were two vehicles in the driveway and Peggy had access to the car keys. About 10:00 P.M., Peggy went to the spare bedroom and removed the gun from under the mattress, walked back to the bedroom, and killed her husband while he slept. She then ran to the home of a neighbor, who called the police.

When the police questioned Peggy regarding the events leading up to the shooting, Peggy stated that things had not gone quite right that day, and that when she got the chance she hid the gun under the mattress. She stated that she shot Mike to “get this over with, this misery and this torment.” When asked why she got the gun out, Peggy stated to the police: “I’m not sure exactly what … led up to it … and my head started playing games with me and I got to thinking about things and I said I didn’t want to be by myself again …. I got the gun out because there had been remarks made about me being out there alone. It was as if Mike was going to do something again like had been done before. He had gotten me down here from McPherson one time and he went and told them that I had done something and he had me put out of the house and was taking everything I had. And it was like he was going to pull the same thing over again.”

Two expert witnesses testified during the trial. The expert for the defense, psychologist Marilyn Hutchinson, diagnosed Peggy as suffering from “battered woman syndrome,” or post-traumatic stress syndrome. Dr. Hutchinson testified that Mike was preparing to escalate the violence in retaliation for Peggy’s running away. She testified that loaded guns, veiled threats, and increased sexual demands are indicators of the escalation of the cycle. Dr. Hutchinson believed Peggy had a repressed knowledge that she was in a “really grave lethal situation.”

The State’s expert, psychiatrist Herbert Modlin, neither subscribed to a belief in the battered woman syndrome nor to a theory of learned helplessness as an explanation for why women do not leave an abusive relationship. Dr. Modlin testified that abuse such as repeated forced oral sex would not be trauma sufficient to trigger a post-traumatic stress disorder. He also believed Peggy was erroneously diagnosed as suffering from toxic psychosis. He stated that Peggy was unable to escape the abuse because she suffered from schizophrenia, rather than the battered woman syndrome.

At defense counsel’s request, the trial judge gave an instruction on self-defense to the jury. The jury found Peggy not guilty.

Although the State may not appeal an acquittal, it may reserve questions for appeal. We will not entertain an appeal by the prosecution merely to determine whether the trial court committed error. The appeal by the prosecution must raise a question of statewide interest, the answer to which is essential to the just administration of criminal law. The question reserved is whether the trial judge erred in instructing on self-defense when there was no imminent threat to the defendant and no evidence of any argument or altercation between the defendant and the victim contemporaneous with the killing. We find this question and the related question of the extent to which evidence of the battered woman syndrome will be allowed to expand the statutory justification for the use of deadly force in self-defense are questions of statewide importance.

The State claims that under the facts the instruction should not have been given because there was no lethal threat to defendant contemporaneous with the killing. The State points out that Peggy’s annulment and divorces from former husbands, and her filing for divorce after leaving Mike, proved that Peggy knew there were non-lethal methods by which she could extricate herself from the abusive relationship.

Early Kansas cases held that killing in selfdefense was justifiable when the defendant had reasonable grounds to believe that an aggressor ( 1) had a design to take the defendant’s life, (2) attempted to execute the design or was in an apparent situation to do so, and (3) induced in the defendant a reasonable belief that he intended to do so immediately. State v. Horne, 15 Kan. 547,554 (1875).

These common-law principles were codified in K.S.A. 21- 3211, which provides: A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.

The traditional concept of self-defense has posited one-time conflicts between persons of somewhat equal size and strength. When the defendant claiming selfdefense is a victim of long-term domestic violence, such as a battered spouse, such traditional concepts may not apply. Because of the prior history of abuse, and the difference in strength and size between the abused and the abuser, the accused in such cases may choose to defend during a momentary lull in the abuse, rather than during a conflict. However, in order to warrant the giving of a self-defense instruction, the facts of the case must still show that the spouse was in imminent danger close to the time of the killing.

A person is justified in using force against an aggressor when it appears to that person and he or she reasonably believes such force to be necessary. A reasonable belief implies both an honest belief and the existence of facts which would persuade a reasonable person to that belief. A self-defense instruction must be given if there is any evidence to support a claim of self-defense, even if that evidence consists solely of the defendant’s testimony.

Where self-defense is asserted, evidence of the deceased’s long-term cruelty and violence towards the defendant is admissible. In cases involving battered spouses, expert evidence of the battered woman syndrome is relevant to a determination of the reasonableness of the defendant’s perception of danger. In order to instruct a jury on self-defense, there must be some showing of an imminent threat or a confrontational circumstance involving an overt act by an aggressor. There is no exception to this requirement where the defendant has suffered long-term domestic abuse and the victim is the abuser. In such cases, the issue is not whether the defendant believes homicide is the solution to past or future problems with the batterer, but rather whether circumstances surrounding the killing were sufficient to create a reasonable belief in the defendant that the use of deadly force was necessary. In three recent Kansas cases where battered women shot their husbands, the women were clearly threatened in the moments prior to the shootings. [Summary of these cases omitted here.] Each case involved a threat of death to the wife and a violent confrontation between husband and wife, contemporaneous with the shooting.

Here, however, there is an absence of imminent danger to defendant: Peggy told a nurse at the Oklahoma hospital of her desire to kill Mike. She later voluntarily agreed to return home with Mike when he telephoned her. She stated that after leaving the hospital Mike threatened to kill her if she left him again. Peggy showed no inclination to leave. In fact, immediately after the shooting, Peggy told the police that she was upset because she thought Mike would leave her. Prior to the shooting, Peggy hid the loaded gun. The cars were in the driveway and Peggy had access to the car keys. After being abused, Peggy went to bed with Mike at 8 P.M. Peggy lay there for two hours, then retrieved the gun from where she had hidden it and shot Mike while he slept.

Under these facts, the giving of the self-defense instruction was erroneous. Under such circumstances, a battered woman cannot reasonably fear imminent life-threatening danger from her sleeping spouse.

Finally, our legislature has not provided for capital punishment for even the most heinous crimes. We must, therefore, hold that when a battered woman kills her sleeping spouse when there is no imminent danger, the killing is not reasonably necessary and a self-defense instruction may not be given. To hold otherwise in this case would in effect allow the execution of the abuser for past or future acts and conduct.

One additional issue must be addressed. In its amicus curiae brief, the Kansas County and District Attorney Association contends the instruction given by the trial court improperly modified the law of selfdefense to be more generous to one suffering from the battered woman syndrome than to any other defendant relying on self-defense. We agree …. Here, the trial judge gave the instruction, stating: The defendant has claimed her conduct was justified as self-defense. A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force. Such justification requires both a belief on the part of the defendant and the existence of facts that would persuade a reasonable person to that belief. The trial judge then added the following: You must determine, from the viewpoint of the defendant’s mental state, whether the defendant’s belief in the need to defend herself was reasonable in light of her subjective impressions and the facts and circumstances known to her.

This addition was apparently encouraged by the following language in State v. Hodges, 239 Kan. 63, Syl. l)[ 4, 716 P.2d 563: Where the battered woman syndrome is an issue in the case, the standard for reasonableness concerning an accused’s belief in asserting self-defense is not an objective, but a subjective standard. The jury must determine, from the viewpoint of defendant’s mental state, whether defendant’s belief in the need to defend herself was reasonable.

The statement that the reasonableness of defendant’s belief in asserting self-defense should be measured from the defendant’s own individual subjective viewpoint conflicts with prior law. Our test for selfdefense is a two-pronged one. We first use a subjective standard to determine whether the defendant sincerely and honestly believed it necessary to kill in order to defend. We then use an objective standard to determine whether defendant’s belief was reasonable-specifically, whether a reasonable person in defendant’s circumstances would have perceived self-defense as necessary …. [I]n cases involving battered spouses, “the objective test is how a reasonably prudent battered wife would perceive the aggressor’s demeanor.” … [I]t was error for the trial court to instruct the jury to employ solely a subjective test in determining the reasonableness of defendant’s actions. The appeal is sustained.

… It is not within the scope of appellate review to weigh the evidence. An appellate court’s function is to merely examine the record and determine if there is any evidence to support the theory of self-defense. If the record discloses any competent evidence upon which self-defense could be based, then the instruction must be given. In judging the evidence for this purpose, all inferences should be resolved in favor of the defendant.

It is evident from prior case law … [ omitted] Peggy met her burden of showing some competent evidence that she acted in self-defense, thus making her defense a jury question. She testified she acted in fear for her life, and Dr. Hutchinson corroborated this testimony. The evidence of Mike’s past abuse, the escalation of violence, his threat of killing her should she attempt to leave him, and Dr. Hutchinson’s testimony that Peggy was indeed in a “lethal situation” more than met the minimal standard of “any evidence” to allow an instruction to be given to the jury.

Peggy introduced much uncontroverted evidence of the violent nature of the deceased and how he had brutalized her throughout their married life. It is well settled in Kansas that when self-defense is asserted, evidence of the cruel and violent nature of the deceased toward the defendant is admissible. The evidence showed Mike had a “Dr. Jekyll and Mr. Hyde” personality. He was usually very friendly and ingratiating when non-family persons were around, but was belligerent and domineering to family members. He had a violent temper and would blow up without reason.

Mike was cruel to his two stepdaughters, Carla and Laura, as well as to the Peggy. He took pride in hurting them or anything they held dear, such as their pets. Mike’s violence toward Peggy and her daughters caused Peggy to have emotional problems with symptoms of paranoid schizophrenia. He would overdose Peggy on her medication and then cut her off it altogether. Mike’s cruelty would culminate in an outburst of violence, and then he would suddenly become very loving and considerate. This was very confusing to Peggy. She lived in constant dread of the next outburst.

Peggy became progressively more passive and helpless during the marriage but finally became desperate enough to confront Mike and tell him the cruelty to her daughters had to stop. Mike responded by holding a shotgun to her head and threatening to kill her in front of the girls. The violence escalated. At one point, Mike kicked Peggy so violently in the chest and ribs that she required hospitalization.

Mike threw twelve-year-old Carla out of the house without resources, and Laura left home as soon as she could. Mike would not let Peggy see her daughters and ran Laura off with a shotgun when she tried to visit. Peggy’s life became even more isolated. Towards the end, both the phone and utilities were disconnected from the house.

Peggy finally took the car and ran away to Laura’s home in Oklahoma. It was the first time she had ever left Mike without telling him. She was suicidal and again hearing voices, and Laura had her admitted to a hospital. She was diagnosed as having toxic psychosis from a bad reaction to her medication. She soon felt better, but was not fully recovered, when Mike found out where she was and called her to say he was coming to get her. She told a nurse she felt like she wanted to shoot him, but the nurse noted her major emotion was one of hopelessness.

The hospital nevertheless released Peggy to Mike’s care, and he immediately drove her back to Kansas, telling her on the way she was going to have to “settle down now” and listen to him because he was the boss. He said if she ever ran away again, he would kill her.

When they reached the house, Mike would not let Peggy bring in her suitcases and forced her to have oral sex four or five times in the next 36 hours, with such violence that the inside of her mouth was bruised. The next morning, Peggy found a box of bullets in the car that had not been there before. She then discovered a loaded .357 magnum. This frightened her, because Mike had promised to keep his guns unloaded. She did not know how to unload the gun, so she hid it under the mattress of the bed in a spare room. As she cleaned house, Mike remarked she should not bother, because she would not be there long. He told her she should not bother with her things, because she could not take them with her. She took these statements to mean she would soon be dead and she grew progressively more terrified. Throughout the day Mike continued to force her to have oral sex, while telling her how he preferred sex with other women.

The sexual abuse stopped when Mike’s parents came to visit. Mike’s father testified everything seemed normal during their stay. After the visit, Mike again forced Peggy to perform oral sex and then demanded at 8:00 P.M. she come to bed with him. The cumulative effect of Mike’s past history, coupled with his current abusive conduct, justified Peggy’s belief that a violent explosion was imminent. As he slept, Peggy was terrified and thought about suicide and heard voices in her head repeating over and over, “kill or be killed.” The voices warned her there was going to be killing and to get away.

She went to the spare bedroom and removed the gun from under the mattress, walked back to the bedroom, and fatally shot Mike. After the first shot, she thought he was coming after her so she shot again and fled wildly outside, barefoot, wearing only her underwear. Ignoring the truck and car outside, although she had the keys in her purse inside, she ran over a mile to the neighbors’ house and pled with them to keep Mike from killing her. She thought she had heard him chasing her. The neighbor woman took the gun from Peggy’s hand and gave her a robe while her husband called the sheriff. The neighbor testified Peggy appeared frightened for her life and was certain Mike was alive and looking for her.

Psychologist Marilyn Hutchinson qualified as an expert on the battered woman syndrome and analyzed the uncontroverted facts for the jury. She concluded Peggy was a victim of the syndrome and reasonably believed she was in imminent danger. In State v. Hodges, 716 P.2d 563 (1986), we held it appropriate to permit expert testimony on the battered woman syndrome to prove the reasonableness of the defendant’s belief she was in imminent danger. Most courts which have addressed the issue are in accord.

The majority implies its decision is necessary to keep the battered woman syndrome from operating as a defense in and of itself. It has always been clear the syndrome is not a defense itself. Evidence of the syndrome is admissible only because of its relevance to the issue of self-defense. The majority of jurisdictions have held it beyond the ordinary jury’s understanding why a battered woman may feel she cannot escape, and have held evidence of the battered woman syndrome proper to explain it. The expert testimony explains how people react to circumstances in which the average juror has not been involved. It assists the jury in evaluating the sincerity of the defendant’s belief she was in imminent danger requiring self-defense and whether she was in fact in imminent danger.

Dr. Hutchinson explained to the jury at Peggy’s trial the “cycle of violence” which induces a state of “learned helplessness” and keeps a battered woman in the relationship. She testified Peggy was caught in such a cycle. The cycle begins with an initial building of tension and violence, culminates in an explosion, and ends with a “honeymoon.” The woman becomes conditioned to trying to make it through one more violent explosion with its battering in order to be rewarded by the “honeymoon phase,” with its expressions of remorse and eternal love and the standard promise of “never again.” After all promises are broken time after time and she is beaten again and again, the battered woman falls into a state of learned helplessness where she gives up trying to extract herself from the cycle of violence. She learns fighting back only delays the honeymoon and escalates the violence. If she tries to leave the relationship, she is located and returned and the violence increases. She is a captive. She begins to believe her husband is omnipotent, and resistance will be futile at best.

It is a jury question to determine if the battered woman who kills her husband as he sleeps fears he will find and kill her if she leaves, as is usually claimed. Under such circumstances the battered woman is not under actual physical attack when she kills but such attack is imminent, and as a result she believes her life is in imminent danger. She may kill during the tension-building stage when the abuse is apparently not as severe as it sometimes has been, but nevertheless has escalated so that she is afraid the acute stage to come will be fatal to her. She only acts on such fear if she has some survival instinct remaining after the husband-induced “learned helplessness.”

Dr. Hutchinson testified the typical batterer has a dichotomous personality, in which he only shows his violent side to his wife or his family. A batterer’s major characteristic is the need to blame all frustration on someone else. In a typical battering relationship, she said, the husband and wife are in traditional sex roles, the wife has low self-esteem, and the husband abuses drugs or alcohol. The husband believes the wife is his property and what he does to her is no one’s business. There is usually a sense of isolation, with the woman not allowed to speak with friends or children. Overlying the violence is the intimation of death, often created by threats with weapons.

It was Dr. Hutchinson’s opinion Mike was planning to escalate his violence in retaliation against Peggy for running away. She testified that Mike’s threats against Peggy’s life, his brutal sexual acts, and Peggy’s discovery of the loaded gun were all indicators to Peggy the violence had escalated and she was in danger. Dr. Hutchinson believed Peggy had a repressed knowledge she was in what was really a gravely lethal situation. She testified Peggy was convinced she must “kill or be killed.”

The majority claims permitting a jury to consider self-defense under these facts would permit anarchy. This underestimates the jury’s ability to recognize an invalid claim of self-defense. Although this is a case of first impression where an appeal by the State has been allowed, there have been several similar cases in which the defendant appealed on other grounds. In each of these cases where a battered woman killed the sleeping batterer, a self-defense instruction has been given when requested by the defendant.

The majority bases its opinion on its conclusion Peggy was not in imminent danger, usurping the right of the jury to make that determination of fact. The majority believes a person could not be in imminent danger from an aggressor merely because the aggressor dropped off to sleep. This is a fallacious conclusion. For instance, picture a hostage situation where the armed guard inadvertently drops off to sleep and the hostage grabs his gun and shoots him. The majority opinion would preclude the use of self-defense in such a case.

The majority attempts to buttress its conclusion Peggy was not in imminent danger by citing 19th Century law. The old requirement of “immediate” danger is not in accord with our statute on self-defense, K.S.A. 21-3211, and has been emphatically overruled by case law. Yet this standard permeates the majority’s reasoning. A review of the law in this state on the requirement of imminent rather than immediate danger to justify self-defense is therefore required. [Summary of cases purportedly supporting this conclusion omitted here.] I would deny this appeal.

Questions

1. List all the facts and circumstances relevant to deciding whether Peggy Stewart was in “imminent” danger.

2. Summarize the court majority’s arguments against imminent danger. Summarize the dissent’s arguments for imminent danger.

3. Consider the following comments: a. Retaliation, as opposed to defense, is a common problem in cases arising from wife battering and domestic violence. The injured wife waits for the first possibility of striking against a distracted or unarmed husband. The man may even be asleep when the wife finally reacts. b. Retaliation is the standard case of “taking the law into your own hands.” There is no way, under the law, to justify killing a wife batterer or a rapist in retaliation or revenge, however much sympathy there may be for the wife wreaking retaliation. Private citizens cannot act as judge and jury toward each other. They have no authority to pass judgment and to punish each other for past wrongs (Fletcher 1988, 21-22). c. “The right to use force in the defense of one’s person, family, habitation, lands, or goods is one of the unalienable rights of man. As it is a right not granted by any human code, no human code can take it away. It was recognized by the Roman law, declared by that law to be a natural right, and part of the law of nations. It is no doubt recognized by the code of every civilized State” (Thompson 1880, 546). d. “A man is not born to run away. The law must consider human nature and make some allowance for the fighting instinct at critical moments. In Texas it is well settled, as you might imagine, that a man is not born to run away” (DeWolfe Howe 1953, 1:331). Are any of the statements relevant to battered woman domestic violence cases? Do you agree with the statements? Explain your answer.

4. In your opinion, did Peggy Stewart kill Mike Stewart in self-defense? As a preemptive strike? Or as retaliation? Or something else? Defend your answer.

Jason Shelley was convicted in the Superior Court, King County, of second-degree assault, arising out of an incident in which Shelley intentionally punched another basketball player during a game. Shelley appealed. The Court of Appeals affirmed the conviction.

On March 31, 1993, Jason Shelley and Mario Gonzalez played “pickup” basketball on opposing teams at the University of Washington Intramural Activities Building (the IMA). Pickup games are not refereed by an official; rather, the players take responsibility for calling their own fouls.

During the course of three games, Gonzalez fouled Shelley several times. Gonzalez had a reputation for playing overly aggressive defense at the IMA. Toward the end of the evening, after trying to hit the ball away from Shelley, he scratched Shelley’s face and drew blood. After getting scratched, Shelley briefly left the game and then returned.

Shelley and Gonzalez have differing versions of what occurred after Shelley returned to the game. According to Gonzalez, while he was waiting for play in the game to return to Gonzalez’s side of the court, Shelley suddenly hit him. Gonzalez did not see Shelley punch him. According to Shelley’s version of events, when Shelley rejoined the game, he was running down the court and he saw Gonzalez make “a move towards me as if he was maybe going to prevent me from getting the ball.”

The move was with his hand up “across my vision.” Angry, he “just reacted” and swung. He said he hit him because he was afraid of being hurt, like the previous scratch. He testified that Gonzalez continually beat him up during the game by fouling him hard.

A week after the incident, a school police detective interviewed Shelley and prepared a statement for Shelley to sign based on the interview. Shelley reported to the police that Gonzalez had been “continually slapping and scratching him” during the game. Shelley “had been getting mad” at Gonzalez, and the scratch on Shelley’s face was the “final straw.”

As the two were running down the court side by side, “I swung my right hand around and hit him with my fist on the right side of his face.” Shelley asserted that he also told the detective that Gonzalez waved a hand at him just before Shelley threw the punch and that he told the detective that he was afraid of being injured.

Gonzalez required emergency surgery to repair his jaw. Broken in three places, it was wired shut for six weeks. His treating physician believed that a “significant” blow caused the damage.

During the course of the trial, defense counsel told the court he intended to propose a jury instruction that: “A person legally consents to conduct that causes or threatens bodily harm if the conduct and the harm are reasonably foreseeable hazards of joint participation in a lawful, athletic contest or competitive sport.”

Although the trial court agreed that there were risks involved in sports, it stated that “the risk of being intentionally punched by another player is one that I don’t think we ever do assume.” The court noted, “In basketball you consent to a certain amount of rough contact. If they were both going for a rebound and Mr. Shelley’s elbow or even his fist hit Mr. Gonzalez as they were both jumping for the rebound and Mr. Gonzalez’s jaw was fractured in exactly the same way then you would have an issue.”

Reasoning that “our laws are intended to uphold the public peace and regulate behavior of individuals,” the court ruled “that as a matter of law, consent cannot be a defense to an assault.” The court indicated that Shelley could not claim consent because his conduct “exceeded” what is considered within the rules of that particular sport: Consent is a contract that is contemplated within the rules of the game and that is incidental to the furtherance of the goals of that particular game. If you can show me any rule book for basketball at any level that says an intentional punch to the face in some way is a part of the game, then I would take another look at your argument. I don’t believe any such rule book exists.

Later, Shelley proposed jury instructions on the subject of consent: An act is not an assault, if it is done with the consent of the person alleged to be assaulted. It is a defense to a charge of second degree assault occurring in the course of an athletic contest if the conduct and the harm are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport.

The trial court rejected these, and Shelley excepted. The trial court did instruct the jury about self-defense.

First, we hold that consent is a defense to an assault occurring during an athletic contest. This is consistent with the law of assault as it has developed in Washington. A person is guilty of second-degree assault if he or she “intentionally assaults another and thereby recklessly inflicts substantial bodily harm.”

One common law definition of assault recognized in Washington is “an unlawful touching with criminal intent.” At the common law, a touching is unlawful when the person touched did not give consent to it, and it was either harmful or offensive. As our Supreme Court stated in State v. Simmons, “Where there is consent, there is no assault.” The State argues that because Simmons was a sexual assault case, the defense of consent should be limited to that realm. We decline to apply the defense so narrowly.

Logically, consent must be an issue in sporting events because a person participates in a game knowing that it will involve potentially offensive contact and with this consent the “touchings” involved are not “unlawful.” The rationale that courts offer in limiting consent as a defense is that society has an interest in punishing assaults as breaches of the public peace and order, so that an individual cannot consent to a wrong that is committed against the public peace.

Urging us to reject the defense of consent because an assault violates the public peace, the State argues that this principle precludes Shelley from being entitled to argue the consent defense on the facts of his case. If consent cannot be a defense to assault, then most athletic contests would need to be banned because many involve “invasions of one’s physical integrity.” Because society has chosen to foster sports competitions, players necessarily must be able to consent to physical contact and other players must be able to rely on that consent when playing the game. This is the view adopted by the drafters of the Model Penal Code: There are, however, situations in which consent to bodily injury should be recognized as a defense to crime. There is the obvious case of participation in an athletic contest or competitive sport, where the nature of the enterprise often involves risk of serious injury. Here, the social judgment that permits the contest to flourish necessarily involves the companion judgment that reasonably foreseeable hazards can be consented to by virtue of participation.

The more difficult question is the proper standard by which to judge whether a person consented to the particular conduct at issue. The State argues that when the conduct in question is not within the rules of a given sport, a victim cannot be deemed to have consented to this act. The trial court apparently agreed with this approach.

Although we recognize that there is authority supporting this approach, we reject a reliance on the rules of the games as too limiting. Rollin M. Perkins in Criminal Law explains: The test is not necessarily whether the blow exceeds the conduct allowed by the rules of the game. Certain excesses and inconveniences are to be expected beyond the formal rules of the game. It may be ordinary and expected conduct for minor assaults to occur. However, intentional excesses beyond those reasonably contemplated in the sport are not justified.

Instead, we adopt the approach of the Model Penal Code which provides: 2. Consent to Bodily Injury. When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if: a. the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport or other concerted activity not forbidden by law.

The State argues the law does not allow “the victim to ‘consent’ to a broken jaw simply by participating in an unrefereed, informal basketball game.” This argument presupposes that the harm suffered dictates whether the defense is available or not. This is not the correct inquiry. The correct inquiry is whether the conduct of defendant constituted foreseeable behavior in the play of the game.

Additionally, the injury must have occurred as a byproduct of the game itself. In State v. Floyd, a fight broke out during a basketball game and the defendant, who was on the sidelines, punched and severely injured several opposing team members. The defense did not apply because the statute “contemplated a person who commits acts during the course of play.” There is a “continuum, or sliding scale, grounded in the circumstances under which voluntary participants engage in sport which governs the type of incidents in which an individual volunteers (i.e., consents) to participate.”

The New York courts provide another example. In a football game, while tackling the defendant, the victim hit the defendant. After the play was over and all of the players got off the defendant, the defendant punched the victim in the eye … .Initially it may be assumed that the very first punch thrown in the course of the tackle was consented to by defendant. The act of tackling an opponent in the course of a football game may often involve “contact” that could easily be interpreted to be a “punch.” Defendant’s response after the pileup to complainant’s initial act of “aggression” cannot be mistaken. This was not a consented to act. People v. Freer, 381 N.Y.S.2d 976, 978 (1976).

The State may argue that the defendant’s conduct exceeded behavior foreseeable in the game. Although in ” all sports players consent to many risks, hazards and blows,” there is “a limit to the magnitude and dangerousness of a blow to which another is deemed to consent.” This limit, like the foreseeability of the risks, is determined by presenting evidence to the jury about the nature of the game, the participants’ expectations, the location where the game has been played, as well as the rules of the game.

Here, taking Shelley’s version of the events as true, the magnitude and dangerousness of Shelley’s actions were beyond the limit. There is no question that Shelley lashed out at Gonzalez with sufficient force to land a substantial blow to the jaw, and there is no question but that Shelley intended to hit Gonzalez. There is nothing in the game of basketball, or even rugby or hockey, that would permit consent as a defense to such conduct. Shelley admitted to an assault and was not precluded from arguing that the assault justified self-defense; but justification and consent are not the same inquiry. We affirm.

Questions

1. According to the court, why can participants in a sporting event consent to conduct that would otherwise be a crime?

2. Why should they be allowed to consent to such conduct when in other situations (such as those enumerated in the Exploring Further cases that follow) they can’t consent?

3. Should individuals be allowed to knowingly and voluntarily consent to the commission of crimes against themselves? Why or why not?

4. Why was Shelley not allowed the defense of consent in this case ?

5. Do you agree with the court’s decision? Relying on the relevant facts in the case, defend your answer.

On March 11, 2014, a jur
y convicted Myah Evans Batie of domestic violence in violation of R.C.
2919.25(A) with a prior conviction specification. The charge arose out of a physical altercation between
Batie and her husband, where the husband called

911 for assistance. Batie appe
aled. The Ohio Court of
Appeals affirmed.

[On direct examination, Officer Todd Simpson testified as follows at Myah Evans Batie’s trial:]
Q. And
when you respond to a domestic violence call, is it your duty to determine who is the primary physical
aggres
sor? A. Yes, it is. Copyright 2017 Ccngagc Learning. Alt Rights Reserved . May not be copied,
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ew has deemed that any suppressed
content does not materially affect the overall learning experience. Cengage Leaming reserves the right
to remove additional content at any time if subsequent rights restrictions require it Q. Based on your
conversation in
speaking with the victim … outside, in speaking with the defendant inside, your
observations, what did you conclude? A. The observations of the evidence proved that Miss
BatieDefense Counsel: Objection. The Court: Overruled. A. Miss Evans started the dis
turbance,
continued and assaulted and injured her husband. Q. And what was your basis for coming to that
conclusion? A. His bruising obviously on his face, the scratches, bite marks on his arm, and I think his leg.

A claim of self
–
defense requires
the defendant prove by a preponderance of the evidence that ( 1) she
“was not at fault in creating the situation giving rise to the affray” ; (2) that she “had a bona fide belief
that she was in imminent danger of death or great bodily harm and that her on
ly means of escape from
such danger was in the use of such force;” and (3) “that she did not violate any duty to retreat or avoid
danger.”

The first prong of the test asks, in essence, whether the defendant was the initial aggressor. While the
primary phys
ical aggressor inquiry is not necessarily the same as whether a person was the initial
aggressor, the primary aggressor question can nonetheless undermine a claim of self
–
defense. This is
especially true when an officer’s testimony goes beyond the primary
aggressor inquiry and treads into
the realm of who initiated the altercation. That is exactly what happened in this case.

A careful review of the record in this case establishes that Officer Simpson did opine on an ultimate
issue in the domestic violence d
efense. When asked what conclusions he drew based on his
observations, Simpson responded by saying that the observations of the evidence proved that Batie
“started the disturbance, continued, and assaulted and injured,” her husband (emphasis added).
Simpso
n did not simply testify as to the reason why he treated Batie as the primary physical aggressor
and choose to proceed with charging her
–
testimony that would otherwise be admissible. Rather,
Simpson asserted that his observations proved Batie started the a
ffray. This is exactly the type of
improper testimony that must be

omitted from trial, and we find that the trial court abused its
discretion by allowing it.

Notwithstanding our determination that the trial court abused its discretion, we must neverthe
less
overrule the assignment of error because the testimony amounted to harmless error. Any error, defect,
irregularity or variance which does not affect the substantial rights of the defendant shall be
disregarded. The term “substantial rights” has been i
nterpreted to require that the error be prejudicial
–
that is that it must have affected the outcome of the trial court proceedings.

On March 11, 2014, a jury convicted Myah Evans Batie of domestic violence in violation of R.C.
2919.25(A) with a prior conviction specification. The charge arose out of a physical altercation between
Batie and her husband, where the husband called 911 for assistance. Batie appealed. The Ohio Court of
Appeals affirmed.
[On direct examination, Officer Todd Simpson testified as follows at Myah Evans Batie’s trial:] Q. And
when you respond to a domestic violence call, is it your duty to determine who is the primary physical
aggressor? A. Yes, it is. Copyright 2017 Ccngagc Learning. Alt Rights Reserved . May not be copied,
scanned. or duplicated. in whole or in part. Due to electronic rights, some third party content may be
suppressed from the cBook and/or eChapter(s) Editorial review has deemed that any suppressed
content does not materially affect the overall learning experience. Cengage Leaming reserves the right
to remove additional content at any time if subsequent rights restrictions require it Q. Based on your
conversation in speaking with the victim … outside, in speaking with the defendant inside, your
observations, what did you conclude? A. The observations of the evidence proved that Miss
BatieDefense Counsel: Objection. The Court: Overruled. A. Miss Evans started the disturbance,
continued and assaulted and injured her husband. Q. And what was your basis for coming to that
conclusion? A. His bruising obviously on his face, the scratches, bite marks on his arm, and I think his leg.
A claim of self-defense requires the defendant prove by a preponderance of the evidence that ( 1) she
“was not at fault in creating the situation giving rise to the affray” ; (2) that she “had a bona fide belief
that she was in imminent danger of death or great bodily harm and that her only means of escape from
such danger was in the use of such force;” and (3) “that she did not violate any duty to retreat or avoid
danger.”
The first prong of the test asks, in essence, whether the defendant was the initial aggressor. While the
primary physical aggressor inquiry is not necessarily the same as whether a person was the initial
aggressor, the primary aggressor question can nonetheless undermine a claim of self-defense. This is
especially true when an officer’s testimony goes beyond the primary aggressor inquiry and treads into
the realm of who initiated the altercation. That is exactly what happened in this case.
A careful review of the record in this case establishes that Officer Simpson did opine on an ultimate
issue in the domestic violence defense. When asked what conclusions he drew based on his
observations, Simpson responded by saying that the observations of the evidence proved that Batie
“started the disturbance, continued, and assaulted and injured,” her husband (emphasis added).
Simpson did not simply testify as to the reason why he treated Batie as the primary physical aggressor
and choose to proceed with charging her-testimony that would otherwise be admissible. Rather,
Simpson asserted that his observations proved Batie started the affray. This is exactly the type of
improper testimony that must be omitted from trial, and we find that the trial court abused its
discretion by allowing it.
Notwithstanding our determination that the trial court abused its discretion, we must nevertheless
overrule the assignment of error because the testimony amounted to harmless error. Any error, defect,
irregularity or variance which does not affect the substantial rights of the defendant shall be
disregarded. The term “substantial rights” has been interpreted to require that the error be prejudicial-
that is that it must have affected the outcome of the trial court proceedings.

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
–
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.

DouglasE. Metzger was convicted in the municipal court of the city of Lincoln, Nebraska, of violating § 9 .52.100 of the Lincoln Municipal Code. The District Court, Lancaster County, affirmed the District Court judgment. Metzger appealed to the Nebraska Supreme Court. The Supreme Court reversed and dismissed the District Court’s judgment. KRIVOSHA, CJ.

FACTS Metzger lived in a garden-level apartment located in Lincoln, Nebraska. A large window in the apartment faces a parking lot that is situated on the north side of the apartment building. At about 7:45 A.M. on April 30, 1981, another resident of the apartment, while parking his automobile in a space directly in front of Metzger’s apartment window, observed Metzger standing naked with his arms at his sides in his apartment window for a period of five seconds. The resident testified that he saw Metzger’s body from his thighs on up.

The resident called the police department, and two officers arrived at the apartment at about 8:00 A.M. The officers testified that they observed Metzger standing in front of the window eating a bowl of cereal. They testified that Metzger was standing within a foot of the window, and his nude body, from the mid-thigh on up, was visible. The pertinent portion of § 9.52.100 of the Lincoln Municipal Code, under which Metzger was charged, provides as follows: “It shall be unlawful for any person within the City of Lincoln … to commit any indecent, immodest or filthy act in the presence of any person, or in such a situation that persons passing might ordinarily see the same.”

OPINION

The … issue presented to us by this appeal is whether the ordinance, as drafted, is so vague as to be unconstitutional. We believe that it is. Since the ordinance is criminal in nature, it is a fundamental requirement of due process of law that such criminal ordinance be reasonably clear and definite.

The ordinance in question makes it unlawful for anyone to commit any “indecent, immodest or filthy act.” We know of no way in which the standards required of a criminal act can be met in those broad, general terms. There may be those few who believe persons of opposite sex holding hands in public are immodest, and certainly more who might believe that kissing in public is immodest. Such acts cannot constitute a crime. Certainly one could find many who would conclude that today’s swimming attire found on many beaches or beside many pools is immodest. Yet, the fact that it is immodest does not thereby make it illegal, absent some requirement related to the health, safety, or welfare of the community.

The dividing line between what is lawful and what is unlawful in terms of “indecent,” “immodest,” or “filthy” is simply too broad to satisfy the constitutional requirements of due process. Both lawful and unlawful acts can be embraced within such broad definitions. That cannot be permitted. One is not able to determine in advance what is lawful and what is unlawful. We therefore believe that § 9 .52.100 of the Lincoln Municipal Code must be declared invalid. Because the ordinance is therefore declared invalid, the conviction cannot stand. We do not attempt, in this opinion, to determine whether Metzger’s actions in a particular case might not be made unlawful, nor do we intend to encourage such behavior. Indeed, it may be possible that a governmental subdivision using sufficiently definite language could make such an act as committed by Metzger unlawful. Reversed and dismissed.

DISSENT

The ordinance in question prohibits indecent acts, immodest acts, or filthy acts in the presence of any person. Although the ordinance may be too broad in some respects … the exhibition of his genitals under the circumstances of this case was, clearly, an indecent act. Statutes and ordinances prohibiting indecent exposure generally have been held valid. I do not subscribe to the view that it is only “possible” that such conduct may be prohibited by statute or ordinance.

The Void-for-Vagueness Doctrine

A law is void for vagueness if it forbids conduct and prescribes punishments in terms so uncertain that ordinary people have to guess at their meaning before they choose a course of action. (Lanzetta v. New Jersey 1939, 453) The U.S. Supreme Court has ruled that vague laws violate the guarantees of two provisions in the U.S. Constitution. The Fifth Amendment to the U.S. Constitution guarantees that the federal government shall not deny any individual life, liberty, or property without due process of law. The Fourteenth Amendment provides that no state government shall deny any person life, liberty, or property without due process of law.

THE AIMS OF THE VOID-FOR-VAGUENESS DOCTRINE The void-for-vagueness doctrine takes aim at two evils similar to those of the ban on ex post facto laws. First, void laws fail to give fair warning to private individuals as to what the law prohibits. Second, they allow arbitrary and discriminatory law enforcement. A famous case from the 1930s gangster days, Lanzetta v. New Jersey (1939), still widely cited and relied on today, is an excellent example of both the application of the doctrine and its purposes. The story begins with a challenge to this New Jersey statute: Any person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime, in this or in any other State, is declared to be a gangster …. Every violation is punishable by fine not exceeding $10,000 or imprisonment not exceeding 20 years, or both. (452) The challengers attacking the statute for vagueness were Ignatius Lanzetta, Michael Falcone, and Louie Del Rossi. On June 12, 16, 19, and 24, 1936, the three challengers, “not being engaged in any lawful occupation”; “known to be members of a gang, consisting of two or more persons”; and “having been convicted of a crime in the State of Pennsylvania” were “declared to be gangsters.” The trial court threw out their challenge that the law was void for vagueness; they were tried, convicted, and sentenced to prison for “not more than ten years and not less than five years, at hard labor.” The New Jersey intermediate appellate court and the New Jersey Supreme Court also threw out their challenges. But they finally prevailed when a unanimous U.S. Supreme Court ruled that the New Jersey statute was void for vagueness. Why? No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. (453) The phrase “consisting of two or more persons” is all that purports to define “gang.” The meanings of that word indicated in dictionaries and in historical and sociological writings are numerous and varied. Nor is the meaning derivable from the common law, for neither in that field nor anywhere in the language of the law is there definition of the word. Our attention has not been called to, and we are unable to find, any other statute attempting to make it criminal to be a member of a “gang.” (454-55)

Questions

1. State the exact wording of the offense Douglas Metzger was convicted of.

2. List all of Metzger’s acts and any other facts relevant to deciding whether he violated the ordinance.

3. State the test the court used to decide whether the ordinance was void for vagueness.

4. According to the majority, why was the ordinance vague?

5. According to the dissent, why was the ordinance clear enough to pass the void-for-vagueness test?

6. In your opinion, was the statute clear to a reasonable person? Back up your answer with the facts and arguments in the excerpt and information from the void-for-vagueness discussion in the text.

On December 1, 2011, a jury convicted the defendants of criminal harassment and convicted William of making a false report of child abuse. On the harassment charge, William was sentenced to two and one-half years in the house of correction, eighteen months to be served with the balance suspended until December 1, 2014, with probation conditions; on the charge of making a false report of child abuse, he was fined $1,000. Gail was sentenced to two years in the house of correction, six months to be served with the balance suspended until December 1, 2014, with probation conditions, and fined $1,000. We transferred the defendants’ appeal to this court on our own motion.

This case concerns the constitutionality of the criminal harassment statute, G.L. c. 265, § 43A(a), and its application to acts of cyberharassment among others. Specifically, we consider whether a pattern of harassing conduct that includes both communications made directly to the targets of the harassment and false communications made to third parties through Internet postings solely for the purpose of encouraging those parties also to engage in harassing conduct toward the targets can be constitutionally proscribed by the statute. We also consider whether, to the extent that this pattern of conduct includes speech, that speech is protected by the First Amendment to the United States Constitution or is unprotected speech integral to the commission of the crime.

The victims, James “Jim” J. Lyons, Jr., and his wife, Bernadette, have lived on the same street as the defendants in Andover since around 2000. In 2003, the defendants acquired a tract of land abutting the Lyonses’ property and intended to subdivide and develop it. The Lyonses, along with other neighbors, objected to the proposed development, and years of litigation ensued between the parties. By 2008, the relationship between the families had become strained and communication between them was infrequent.

Gerald Colton, a childhood friend of the Johnsons, did not know the Lyons family prior to 2008. Throughout the 1990s and early 2000s, William hired Colton to work as a handyman on an hourly basis and to identify lots for potential real estate development. If William later developed a lot Colton had identified, Colton would collect a finder’s fee. Gerald Colton identified lots for William Johnson by placing his initials next to vacant lots on the sheets of the town of Andover’s board of assessors. At trial, Colton admitted that his initials appeared to be next to the lot that later became the focus of litigation between the Johnsons and the Lyonses, but suggested that the initials had been forged.

In either late February or early March, 2008, William telephoned Colton and enlisted him to play a series of “pranks” on Jim. The ideas for these “pranks” were generated in several ways: (1) William would directly instruct Colton or convey ideas through Gail; (2) the Johnsons would provide information about the Lyons family to Colton so that he could use this information to harass them; or ( 3) the Johnsons would prompt Colton to think of ideas.

Over the course of thirty-five days in late March and early April, 2008, the defendants, directly and through Colton, engaged in a series of acts directed at the Lyons family. The Commonwealth alleged four separate acts of harassment in addition to the false report of child abuse, and Colton was called as its key witness at the trial.

The first alleged act occurred on March 18, 2008, when Colton posted from his computer an advertisement that appeared on the Internet site “Craigslist.” The advertisement provided the Lyonses’ home telephone number and address and stated that there were free golf carts available at this location on a “first come, first serve” basis. The Lyonses did not own any golf carts and had never used Craigslist. When Bernadette arrived home at 2:30 P.M. that same day, there were strangers in both her driveway and on the street near her home. These individuals informed her about the advertisement and explained that they were looking for golf carts. In total, about thirty to forty people arrived at the Lyonses’ house that afternoon, causing Bernadette to be “scared” and “fearful.”

When Jim arrived home later that evening, he telephoned the police, as Bernadette was in a state of “uneasiness” and Jim felt the incident was “really unusual” and “bizarre.” Andover police Sergeant Chad Cooper responded and advised Jim to contact Craigslist to remove the advertisement and get the Internet Protocol address for the computer that posted it. In Sergeant Cooper’s presence, Jim received numerous telephone calls from people inquiring about the golf carts. When William learned that the Craigslist advertisement had been removed, he asked Colton to “put it back up” and Colton complied. After reposting, Colton testified that he and William “laughed” about it and Colton said that he would post another advertisement.

The second alleged act occurred on March 19, when Colton posted a different Craigslist advertisement, selling “my late son’s” motorcycle and directing interested parties to call Jim on his cellular telephone after 10 P.M. Colton then told William about the posting. That night, Jim received “non-stop” telephone calls regarding the advertisement, approximately twenty every ten minutes. Sergeant Cooper responded again. These late night calls continued for months after the posting.

The third alleged act occurred one week later on March 26, when Colton sent an electronic mail message (e-mail) to the Lyonses from a fictitious account. The subject of the e-mail read, “It’s just a game for me,” and the text stated, “Let The Games Begin!” The e-mail contained Jim and Bernadette’s personal identifying information, including names, home telephone number and address, social security numbers, e-mail address, bank name and location, and Jim’s date of birth and cellular telephone number. At the bottom, the e-mail stated: “Remember, if you aren’t miserable, I aint happy! Let’s Play.” Colton testified that Gail had sent him an e-mail with the Lyonses’ personal information.

The following evening, William arrived at Colton’s home and told Colton that he wanted to call and “turn Uim] in.” William had a piece of paper with a hotline telephone number written on it and proceeded to use Colton’s home telephone to call the Department of Children & Families (DCF) to file a false report alleging child abuse by Jim. William later telephoned Colton to report that a police cruiser and another vehicle were at the Lyonses’ home. Investigator Carrie Riley of the DCF testified that an after-hours “child abuse hotline” had received a call from someone using fictitious information and reporting that Jim was physically abusing his son. Riley and another investigator arrived at the Lyonses’ home at 10:30 P.M. and said they had to examine their son. Jim testified that he and Bernadette were “panicked” and “frightened,” but that, acting on the advice of their attorney, he awakened their son and permitted Riley to inspect him. Riley examined his body for marks and bruises. The DCF case was closed as the son denied any abuse and the investigators found no signs of it.

The fourth alleged act occurred on April 3, 2008, when Colton sent another anonymous e-mail to the Lyonses from another fictitious e-mail account. The subject line was “Brian,” and the text read, “What have you done James? … or. .. Why James? You stole the innocence of a young man.” Shortly thereafter, Jim received a letter by postal mail purportedly sent from an individual named “Brian.” Brian claimed to have worked for Jim when he was fifteen years of age, accused Jim of sexually molesting him as a teenager, and threatened to press charges against him. Colton testified that William told Colton that he had sent the letter. (On cross-examination, Colton acknowledged that, in a 2008 statement, he told police that William showed him a copy of this letter in person while meeting with him somewhere near the Andover office of the Internal Revenue Service, and that, in a 2010 statement, he stated that William had called him and read aloud a “sick letter” that he had already sent to Jim.) Even though the allegations were false, reading the letter was “very tough” and “absolutely alarmed Uim].”

Throughout this entire time period, Colton consistently kept in contact with both defendants, letting them know what he was doing or had done to the Lyons family. William and Gail acquiesced to Colton’s conduct and encouraged him to do more.

OPINION A criminal conviction under § 43A(a) requires proof that “(l) the defendant engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions; (2) the defendant intended to target the victim with the harassing conduct or speech, or series of acts, on each occasion; (3) the conduct or speech, or series of acts, were of such a nature that they seriously alarmed the victim; (4) the conduct or speech, or series of acts, were of such a nature that they would cause a reasonable person to suffer substantial emotional distress; and (5) the defendant committed the conduct or speech, or series of acts, ‘willfully and maliciously’ ” (citations omitted).

Although this court has previously construed the criminal harassment statute, it has not yet considered its application to the type of conduct at issue here. An analysis of whether the defendants’ actions amounted to criminal harassment necessarily includes the consideration whether their conduct satisfied the statutory requirements and whether they engaged in constitutionally protected speech.

l. Facial challenge. William argues that § 43A(a) is both unconstitutionally overbroad and vague. He contends that the statute is dangerously susceptible of application to constitutionally protected speech and is so vague that it leaves the public uncertain as to the conduct it prohibits. His challenge fails on two accounts.

First, the claim is raised for the first time on appeal, and consequently is waived.

Second, the challenge fails because the statute is neither overbroad nor vague. William bears the burden of showing ‘”from the text of [the law] and from actual fact’ … that substantial over breadth exists” (citation omitted). As an initial matter, § 43A(a) is a statute directed at a course of conduct, rather than speech, “and the conduct it proscribes is ‘not necessarily associated with speech.”‘ In particular,§ 43A(a) specifically criminalizes “a knowing pattern of conduct or series of acts … directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress” (emphases added) because§ 43A(a) “proscribes harassing and intimidating conduct, the statute is not facially invalid under the First Amendment.”

Further, as the statute requires both malicious intent on behalf of the perpetrator and substantial harm to the victim, “it is difficult to imagine what constitutionally-protected speech would fall under these statutory prohibitions.” Contrary to William’s claim, the statutory elements such as “seriously alarms” “are not esoteric or complicated terms devoid of common understanding.”

Together the component parts of the statute provide adequate notice and safeguards to prevent its application to protected speech. Contrary to William’s claim that the statute leaves it to the hearer of the speech to determine what conduct is criminal, the Commonwealth must prove that a defendant knew he or she was engaged in a pattern of conduct that intentionally targeted a victim for the purpose of harassment with acts of such a nature that they would cause a reasonable person to suffer substantial emotional distress. This scienter requirement undermines William’s claim that he could be liable under § 43A(a) if his actions were accidental and that putative harassers are at the mercy of a hearer’s sensitivities. Moreover, William has offered no meaningful evidence to show that the statute has a real and substantial deterrent on protected speech or that it actually denies fair notice of what conduct is proscribed. The required elements are clearly delineated such that § 43A(a) leaves no putative harassers wondering what is prohibited. Accordingly, William’s facial challenge to § 43A(a) fails.

2. As-applied challenge. The defendants as applied constitutional challenge also fails because the conduct in question was not protected speech, but rather a hybrid of conduct and speech integral to the commission of a crime. Accordingly, § 43A(a), as applied to the defendants, does not implicate constitutionally protected speech rights.

The defendants do not claim that creating fictitious Internet postings and sending a letter falsely accusing someone of a crime constitute legal conduct. Their conduct served solely to harass the Lyonses by luring numerous strangers and prompting incessant late-night telephone calls to their home by way of false representations, by overtly and aggressively threatening to misuse their personal identifying information, and by falsely accusing Jim of a serious crime. Where the sole purpose of the defendants’ speech was to further their endeavor to intentionally harass the Lyonses, such speech is not protected by the First Amendment. “The [F]irst [A]mendment does not provide a defense to a criminal charge simply because the actor uses words to carry out his illegal purpose.” The speech here was “integral to criminal conduct,” serving only to implement the defendants’ purpose to harass and cause substantial emotional distress to the Lyonses in violation of§ 43A(a).

The defendants point to no lawful purpose of their “communications” … To the extent that any of the harassing contacts were composed of words, they were used “so close in time and purpose to a substantive evil as to become part of the ultimate crime itself.” While the content of the speech in question certainly affected the Lyonses, much of the alarming impact was the product of the frightening number, frequency, and type of harassing contacts with which the defendants bombarded the Lyonses. In these circumstances, the application of§ 43A(a) to the defendants fully withstands constitutional scrutiny.

Nonetheless, the defendants attempt to argue that they are entitled to a required finding of not guilty on the criminal harassment charge because none of their speech constituted “fighting words” which they contend was the only form of speech punishable at the time of the offense under our interpretation of the statute … . [We have held that] … “any attempt to punish an individual for speech not encompassed within the ‘fighting words’ doctrine (or within any other constitutionally unprotected category of speech) would of course offend our Federal and State Constitutions” (emphasis added).

These well-defined and limited categories of speech “are not protected because they are ‘no essential part of any exposition of ideas, and are of such slight social value as a step to truth’ that whatever meager benefit that may be derived from them is ‘clearly outweighed’ by the dangers they pose.” Speech integral to criminal conduct is one such longstanding category that is constitutionally unprotected, directly applicable to the defendants’ conduct here, and permissibly proscribed by§ 43A(a). Accordingly, the denial of the defendants’ motion for a required finding of not guilty on the basis that they engaged in protected First Amendment activity was not error.

3. Sufficiency of evidence. The defendants contend that there was insufficient evidence of their joint venture to criminally harass the victims, arguing that both the “directed at” and “seriously alarms” prongs of the statute were not met. In reviewing the sufficiency of the evidence, we consider the facts in the light most favorable to the Commonwealth, and determine whether any rational trier of fact could have found beyond a reasonable doubt all of the statutory elements.

a. “Directed at” prong. Section 43A(a) requires that the Commonwealth prove three or more predicate acts of harassment that were “directed at a specific person.” The defendants argue that the Craigslist postings (two of the four acts supporting the harassment charge) were not directed at the victims, but were merely directed at the general public. This argument is without merit. As a factual matter, the jury clearly could have concluded that the “directed at” prong was met. While the defendants’ methods were indirect, the false information in the Craigslist postings was intended solely to ensure that the victims were harassed as a consequence by unwitting third parties contacting them at all hours of the night by telephone and showing up at their home. Essentially, the “sole immediate object” of the false advertisements was to create a marketplace for the guaranteed harassment of the victims.

The defendants … [ contend] that statements made to a third party are not speech directed at a specific person. The Craigslist postings were the equivalent of the defendants recruiting others to harass the victims and the victims alone. The causation link is satisfied. The defendants cannot launder their harassment of the Lyons family through the Internet to escape liability.

b. “Seriously alarms ” prong. Section 43A(a) also requires the Commonwealth to prove that the acts of alleged harassment “seriously alarmed” the victims. The serious alarm required under § 43A(a) is a “demanding, subjective element of harm” that must be satisfied by a victim’s testimony rather than conjecture. Defendants argue that (1) the Commonwealth offered insufficient proof that the victims were seriously alarmed, and (2) the victims did not experience serious alarm separately for each act, as required, rather than cumulatively as the result of the pattern of harassing acts. We disagree with both contentions.

First, the Lyonses’ subjective feelings of fear and anxiety were actual (not hypothetical), significant, and well documented at trial. As a general matter, Jim and Bernadette testified that they felt “bombarded,” “attacked,” and “very frightened” throughout the ordeal. Jim described the thirty-five-day “odyssey” in which the defendants would “torture [them],” stating that he was concerned about the safety of his family and himself: “They attacked my business. They attacked my family. And they tried to take my kids away from me.” Bernadette described the situation as “very traumatic,” stating that her family was in a “siege mentality where every day something was happening so [they] got afraid.”

The Lyonses were sufficiently alarmed to call the police “right away” after the very first harassing act. Jim testified that the second act “stepped it up a notch” and made him feel “terrible,” and that the correspondence that he received alleging sexual molestation was “very tough” and “absolutely alarmed” him. The police took notice of and corroborated Jim’s testimony that the defendants’ conduct took a substantial emotional toll on him.

The Lyonses’ testimony of feeling frightened, tortured, and attacked more than meets the “seriously alarms” standard. The victims testified to an abundance of distressing and alarming conduct that amounted to a serious invasion of their emotional tranquility.

The evidence at trial was sufficient to support the verdict rendered by the jury. Judgments affirmed.

Questions

1. List the facts relevant to whether Gail and/or William Johnson’s were protected by the First Amendment.

2. Summarize the Commonwealth’s arguments that the Johnsons’ and their friend’s conduct was cyberharassment.

3. Summarize the Johnsons’ arguments that their conduct was protected speech.

4. In your opinion should it be cyberharassment or an exercise of First Amendment right?

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Raymond Woollard, a handgun owner, and a Second Amendment advocacy group brought an action against state officials, alleging Maryland’s requirement that an applicant demonstrate “good and substantial reason” for the issuance of a handgun permit violated the Second Amendment. The U.S. District Court for the District of Maryland granted the plaintiffs’ motion and denied defendants’ motion for summary judgment. The Defendants appealed. The U.S Fourth Circuit Court of Appeals reversed.

Judge KING wrote the opinion, in which Judge DAVIS and Judge DIAZ joined.

On Christmas Eve, 2002, Woollard was at home with his wife, children, and grandchildren when an intruder shattered a window and broke into the house. The intruder was Kris Lee Abbott, Woollard’s son-in-law. Abbott, who was high on drugs and intent on driving into Baltimore city to buy more, was looking for his wife’s car keys. Woollard grabbed a shotgun and trained it on Abbott, but Abbott wrested the shotgun away. Woollard’s son restored order by pointing a second gun at Abbott. Woollard’s wife called the police, who took two and-a-half hours to arrive.

Abbott, the son-in-law, received a sentence of probation for the Christmas Eve 2002 incident, but was subsequently incarcerated for probation violations. Woollard’s 2006 permit renewal came shortly after Abbott was released from prison. In 2009, however, the Secretary (via the Handgun Permit Unit) and the Handgun Permit Review Board refused Woollard a second renewal because he failed to satisfy the good-and-substantial-reason requirement.

The Handgun Permit Review Board’s decision of November 12, 2009, reflected that Woollard proffered solely the Christmas Eve 2002 incident in support of his request for a second renewal-i.e., as evidence that such a renewal was necessary as a reasonable precaution against apprehended danger-though he acknowledged that he had “not had any contact with his son-in-law in the seven years since the 2002 incident.”

The decision also observed that, despite being advised that such proof was required in the circumstances of his renewal application, Woollard did not “submit documented threats or incidents that had occurred in the last three years,” nor did he provide “documentation to verify threats occurring beyond his residence, where he can already legally carry a handgun.” Accordingly, the Permit Review Board concluded that Woollard had “not demonstrated a good and substantial reason to wear, carry, or transport a handgun as a reasonable precaution against apprehended danger,” and upheld the Permit Unit’s denial of a second permit renewal. Instead of employing the state court appeal process provided by Maryland law, Woollard elected to join with Appellee Second Amendment Foundation in this federal action, challenging the constitutionality of the good-and-substantial-reason requirement and asserting jurisdiction under 28 U.S.C. § § 1331 and 1343.

Under its permitting scheme, Maryland obliges “a person to have a permit issued before the person carries, wears, or transports a handgun.” (Md. Code Ann., Pub. Safety § 5-303). Such permits are not needed, however, by persons in numerous specified situations, including those who are wearing, carrying, and transporting handguns in their own homes and businesses or on other real estate that they own or lease.

Where a permit is mandated, a permitless person risks criminal penalties by “wear[ing], carry[ing], or transport(ing] a handgun, whether concealed or open, on or about the person” or “in a vehicle.” Those penalties begin with imprisonment for a term of thirty days to three years, or a fine of $250 to $2500, or both.

In the present case, although the district court acknowledged “that one should venture into the unmapped reaches of Second Amendment jurisprudence ‘only upon necessity and only then by small degree,”‘ the district court concluded that the individual right to possess and carry weapons for selfdefense is not limited to the home.

We now know, in the wake of the Supreme Court’s decision in District of Columbia v. Heller, that the Second Amendment guarantees the right of individuals to keep and bear arms for the purpose of self-defense. Heller, however, was principally concerned with the “core protection” of the Second Amendment: “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” The Heller Court concluded that the District of Columbia’s outright ban on the possession of an operable handgun in the home-proscribing “the most preferred firearm in the nation to keep and use for protection of one’s home and family”-would fail to pass muster “under any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Otherwise, the Court recognized that “the right secured by the Second Amendment is not unlimited” and listed examples of “presumptively lawful regulatory measures,” but declined to “clarify the entire field” of Second Amendment jurisprudence.

Two years after issuing its Heller decision, in McDonald v. City of Chicago, the Supreme Court recognized that “the Second Amendment right is fully applicable to the States,” and reiterated Heller’s holding “that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense.” Accordingly, a considerable degree of uncertainty remains as to the scope of the Heller right beyond the home and the standards for determining whether and how the right can be burdened by governmental regulation. What we know from Heller and McDonald is that Second Amendment guarantees are at their zenith within the home. What we do not know is the scope of that right beyond the home and the standards for determining when and how the right can be regulated by a government.”

Like several of our sister circuits, we have found that a two-part approach to Second Amendment claims seems appropriate under Heller. Pursuant to our two-part Chester inquiry, [t]he first question is whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification. If it was not, then the challenged law is valid. If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny.

Although the Supreme Court’s cases applying the Second Amendment have arisen only in connection with prohibitions on the possession of firearms in the home, the Court’s analysis suggests that the Amendment must have some application in the very different context of the public possession of firearms. Our analysis proceeds on this assumption.” A handful of courts-most prominently the Seventh Circuit have declared outright that the Heller right extends beyond the home. Other courts have ruled to the contrary, concluding that the Heller right is confined to the home. Notably, Maryland’s highest court falls within the latter category.

We hew to a judicious course today, refraining from any assessment of whether Maryland’s goodand-substantial-reason requirement for obtaining a handgun permit implicates Second Amendment protections. That is, we merely assume that the Heller right exists outside the home and that such right of Appellee Woollard has been infringed. We are free to make that assumption because the good-and substantial-reason requirement passes constitutional muster under what we have deemed to be the applicable standard-intermediate scrutiny.

. . .Intermediate scrutiny applies to laws that burden any right to keep and bear arms outside of the home. We assume that any law that would burden the fundamental, core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny. But, as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense. Because our tradition so clearly indicates a substantial role for state regulation of the carrying of firearms in public, we conclude that intermediate scrutiny is appropriate in this case.

The State has satisfied the intermediate scrutiny standard, in that it has demonstrated that the good and-substantial-reason requirement for obtaining a Maryland handgun permit, as applied to Woollard, “is reasonably adapted to a substantial governmental interest.”

We begin with the issue of whether the governmental interest asserted by the State constitutes a “substantial” one. The State explains that, by enacting the handgun permitting scheme, including the good-and-substantial-reason requirement, the General Assembly endeavored to serve Maryland’s concomitant interests in protecting public safety and preventing crime-particularly violent crime committed with handguns. Such purpose is reflected in codified legislative findings that 1. the number of violent crimes committed in the State has increased alarmingly in recent years; 2. a high percentage of violent crimes committed in the State involves the use of handguns; 3. the result is a substantial increase in the number of deaths and injuries largely traceable to the carrying of handguns in public places by criminals; 4. current law has not been effective in curbing the more frequent use of handguns in committing crime; and 5. additional regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of the public.

In these circumstances, we can easily appreciate Maryland’s impetus to enact measures aimed at protecting public safety and preventing crime, and we readily conclude that such objectives are substantial governmental interests.

We thus turn to the question of whether the good-and-substantial-reason requirement, as applied to Appellee Woollard, is “reasonably adapted” to Maryland’s significant interests. That is, we must decide if the State has demonstrated that there is a “reasonable fit” between the good-and-substantial reason requirement and the governmental objectives of protecting public safety and preventing crime. Importantly, the State must show a fit that is “reasonable, not perfect.” That test is satisfied if Maryland’s interests are “substantially served by enforcement of the” good-and-substantial-reason requirement. There is no necessity either that the good-and-substantial reason requirement “be the least intrusive means of achieving the relevant government objectives, or that there be no burden whatsoever on” Woollard’s Second Amendment right.

The State has clearly demonstrated that the good-and-substantial-reason requirement advances the objectives of protecting public safety and preventing crime because it reduces the number of handguns carried in public. That is, limiting the public carrying of handguns protects citizens and inhibits crime by, inter alia: • Decreasing the availability of handguns to criminals via theft (criminals often target victims “precisely because they possess handguns.” “Criminals in Maryland are constantly looking for ways to arm themselves with handguns, including by stealing them from others. It is not uncommon for criminals to obtain these guns during street altercations.” • Lessening “the likelihood that basic confrontations between individuals would turn deadly.” Incidents such as bar fights and road rage that now often end with people upset, but not lethally wounded, take on deadly implications when handguns are involved; • Averting the confusion, along with the “potentially tragic consequences” that can result from the presence of a third person with a handgun during a confrontation between a police officer and a criminal suspect. Civilians without sufficient training to use and maintain control of their weapons, particularly under tense circumstances, pose a danger to officers and other civilians; • Curtailing the presence of handguns during routine police-citizen encounters ( “If the number of legal handguns on the streets increased significantly, [police] officers would have no choice but to take extra precautions before engaging citizens, effectively treating encounters between police and the community that now are routine, friendly, and trusting, as high-risk stops, which demand a much more rigid protocol and a strategic approach.”); • Reducing the number of “handgun sightings” that must be investigated, id. (“Increasing the number of people legally carrying handguns in the streets will also force [police] officers to spend more resources responding to reports about handgun sightings and engaging handgun carriers to ensure they are doing so lawfully.”); and • Facilitating the identification of those persons carrying handguns who pose a menace, id. at 113 ( “Police officers would also have a harder time identifying potential security risks if more people without good and substantial reason to carry a handgun were able to do so, making it more difficult to respond when necessary.”).

At the same time that it reduces the number of handguns carried in public, however, the good-and substantial-reason requirement ensures that those persons in palpable need of self-protection can arm themselves in public places where Maryland’s various permit exceptions do not apply. Consequently, according to the State, the good-and-substantial-reason requirement “strikes a proper balance between ensuring access to handgun permits for those who need them while preventing a greater-than-necessary proliferation of handguns in public places that … increases risks to public safety.”

We are convinced by the State’s evidence that there is a reasonable fit between the good-and substantial-reason requirement and Maryland’s objectives of protecting public safety and preventing crime.

The good-and-substantial-reason requirement was inappropriately condemned by the district court for being a “rationing system,” that “does no more to combat [threats to public safety] than would a law indiscriminately limiting the issuance of a permit to every tenth applicant.” The court pointed out, inter alia, that the good-and-substantial reason requirement “will not prevent those who meet it from having their guns taken from them.” But we cannot substitute those views for the considered judgment of the General Assembly that the good-and-substantial-reason requirement strikes an appropriate balance between granting handgun permits to those persons known to be in need of self protection and precluding a dangerous proliferation of handguns on the streets of Maryland. The duty of the courts is to ensure that the legislature’s policy choice substantially serves a significant governmental interest. That is, the courts must be satisfied that there is a reasonable fit between the legislative policy choice and the governmental objective. Intermediate scrutiny does not require a perfect fit; rather only a reasonable one.

In summary, although we assume that Appellee Woollard’s Second Amendment right is burdened by the good-and-substantial-reason requirement, we further conclude that such burden is constitutionally permissible. That is, under the applicable intermediate scrutiny standard, the State has demonstrated that the good-and-substantial-reason requirement is reasonably adapted to Maryland’s significant interests in protecting public safety and preventing crime.

Questions

1. Summarize the facts relevant to deciding whether Maryland’s “good-and-substantial-reason requirement” violates the Second Amendment.

2. Summarize Raymond Woollard’s arguments that the requirement violated his Second Amendment rights.

3. Summarize the Court’s arguments upholding the requirement against Woollard’s challenge.

4. In your opinion, is the good-and-substantial reason requirement “reasonably adapted to a substantial governmental interest”? Defend your answer.

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Patrick Kennedy was convicted of the aggravated rape of his eight-year-old stepdaughter under a Louisiana statute that authorized capital punishment for the rape of a child under 12 years of age and was sentenced to death. On his appeal, the Supreme Court of Louisiana affirmed. Kennedy petitioned for certiorari, which was granted. The U.S. Supreme Court reversed and remanded.

At 9:18 A.M. on March 2, 1998, Patrick Kennedy called 911 to report that his stepdaughter, L. H., had been raped. When police arrived at Kennedy’s home between 9:20 and 9:30 A.M. , they found L. H. on her bed, wearing a T-shirt and wrapped in a bloody blanket. She was bleeding profusely from the vaginal area. Kennedy told police he had carried her from the yard to the bathtub and then to the bed. Once in the bedroom, Kennedy had used a basin of water and a cloth to wipe blood from the victim.

L. H. was transported to the Children’s Hospital. An expert in pediatric forensic medicine testified that L. H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice. A laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus. The injuries required emergency surgery. At the scene of the crime, at the hospital, and in the first weeks that followed, both L. H . and Kennedy maintained in their accounts to investigators that L. H. had been raped by two neighborhood boys. L. H . was interviewed several days after the rape by a psychologist. She told the psychologist that she had been playing in the garage when a boy came over and asked her about Girl Scout cookies she was selling; then that the boy “pulled her by the legs to the backyard,” where he placed his hand over her mouth, “pulled down her shorts,” and raped her.

Eight days after the crime, and despite L. H.’s insistence that Kennedy was not the offender, Kennedy was arrested for the rape. The state’s investigation had drawn the accuracy of Kennedy and L. H.’s story into question. Police found that Kennedy made two telephone calls on the morning of the rape. Sometime before 6:15 A.M., Kennedy called his employer and left a message that he was unavailable to work that day. Kennedy called back between 6:30 and 7:30 A.M. to ask a colleague how to get blood out of a white carpet because his daughter had “just become a young lady.” At 7:37 A.M., Kennedy called B & B Carpet Cleaning and requested urgent assistance in removing bloodstains from a carpet. Kennedy did not call 911 until about an hour and a half later.

About a month after Kennedy’s arrest, L. H. was removed from the custody of her mother, who had maintained until that point that Kennedy was not involved in the rape. On June 22, 1998, L. H . was returned home and told her mother for the first time that Kennedy had raped her. And on December 16, 1999, about 21 months after the rape, L. H . recorded her accusation in a videotaped interview with the Child Advocacy Center.

The state charged Kennedy with aggravated rape of a child under La. Stat. Ann. § 14:42 (West 1997 and Supp. 1998) and sought the death penalty. According to the statute, “aggravated” applies to anal or vaginal rape without the consent of the victim when it’s committed under any of 10 aggravating circumstances, one of which is when the victim was under 12 years of age at the time of the rape. The penalty for aggravated rape is life in prison at hard labor without parole, probation, or suspension of sentence. But, if the victim is under 12, the prosecutor asks for the death penalty: “The offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, in accordance with the determination of the jury.”

The trial began in August 2003. L. H. was then 13 years old. She testified that she “woke up one morning and Patrick was on top of her.” She remembered Kennedy bringing her “a cup of orange juice and pills chopped up in it” after the rape and overhearing him on the telephone saying she had become a “young lady.” L. H. acknowledged that she had accused two neighborhood boys but testified Kennedy told her to say this and that it was untrue. After the jury found Kennedy guilty of aggravated rape, the penalty phase ensued. The jury unanimously determined that Kennedy should be sentenced to death. The Louisiana Supreme Court affirmed. We granted certiorari.

The Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense. Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that currently prevail. The Amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society.

Capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution. In these cases the Court has been guided by objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions. Whether the death penalty is disproportionate to the crime committed depends as well upon the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose.

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions-36 States plus the Federal Government-have the death penalty. Only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, Kennedy could not be executed for child rape of any kind.

There are measures of consensus other than legislation. Statistics about the number of executions may inform the consideration whether capital punishment for the crime of child rape is regarded as unacceptable in our society. These statistics confirm our determination from our review of state statutes that there is a social consensus against the death penalty for the crime of child rape.

Louisiana is the only State since 1964 that has sentenced an individual to death for the crime of child rape; and Kennedy and Richard Davis, who was convicted and sentenced to death for the aggravated rape of a 5-year-old child by a Louisiana jury in December 2007, are the only two individuals now on death row in the United States for a nonhomicide offense. After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude there is a national consensus against capital punishment for the crime of child rape.

Objective evidence of contemporary values as it relates to punishment for child rape is entitled to great weight, but it does not end our inquiry. It is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty. We turn, then, to the resolution of the question before us, which is informed by our precedents and our own understanding of the Constitution and the rights it secures.

It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim’s fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. Rape has a permanent psychological, emotional, and sometimes physical impact on the child. We cannot dismiss the years of long anguish that must be endured by the victim of child rape.

It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State’s power to punish be exercised within the limits of civilized standards. Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime.

It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment. We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim. Short of homicide, it is the ultimate violation of self. But the murderer kills; the rapist, if no more than that, does not. We have the abiding conviction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.

Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot be compared to murder in their severity and irrevocability.

The judgment of the Supreme Court of Louisiana upholding the capital sentence is reversed. This case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for child rape is inconsistent with “the evolving standards of decency that mark the progress of a maturing society.” Because neither of these justifications is sound, I respectfully dissent.

I turn first to the Court’s claim that there is “a national consensus” that it is never acceptable to impose the death penalty for the rape of a child. I believe that the “objective indicia” of our society’s “evolving standards of decency” can be fairly summarized as follows. Neither Congress nor juries have done anything that can plausibly be interpreted as evidencing the “national consensus” that the Court perceives. State legislatures, for more than 30 years, have operated under the ominous shadow of the Coker dicta [cruel and unusual punishment to execute a man for raping an adult woman] and thus have not been free to express their own understanding of our society’s standards of decency. And in the months following our grant of certiorari in this case, state legislatures have had an additional reason to pause. Yet despite the inhibiting legal atmosphere that has prevailed since 1977, six States have recently enacted new, targeted child-rape laws.

The Court is willing to block the potential emergence of a national consensus in favor of permitting the death penalty for child rape because, in the end, what matters is the Court’s “own judgment” regarding “the acceptability of the death penalty.” The Court’s final-and, it appears, principal-justification for its holding is that murder, the only crime for which defendants have been executed since this Court’s 1976 death penalty decisions, is unique in its moral depravity and in the severity of the injury that it inflicts on the victim and the public.

Is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

I have little doubt that, in the eyes of ordinary Americans, the very worst child rapists- predators who seek out and inflict serious physical and emotional injury on defenseless young children- are the epitome of moral depravity.

With respect to the question of the harm caused by the rape of child in relation to the harm caused by murder, it is certainly true that the loss of human life represents a unique harm, but that does not explain why other grievous harms are insufficient to permit a death sentence. The rape of any victim inflicts great injury, and some victims are so grievously injured physically or psychologically that life is beyond repair. The immaturity and vulnerability of a child, both physically and psychologically, adds a devastating dimension to rape that is not present when an adult is raped. Long-term studies show that sexual abuse is grossly intrusive in the lives of children and is harmful to their normal psychological, emotional and sexual development in ways which no just or humane society can tolerate.

The harm that is caused to the victims and to society at large by the worst child rapists is grave. It is the judgment of the Louisiana lawmakers and those in an increasing number of other States that these harms justify the death penalty. The Court provides no cogent explanation why this legislative judgment should be overridden. Conclusory references to “decency,” “moderation,” “restraint,” “full progress,” and “moral judgment” are not enough.

The party attacking the constitutionality of a state statute bears the “heavy burden” of establishing that the law is unconstitutional. That burden has not been discharged here, and I would therefore affirm the decision of the Louisiana Supreme Court.

Questions

1. According to the Court, why is death a disproportionate penalty for child rape? Do you agree? Explain your reasons.

2. Who should make the decision as to what is the appropriate penalty for crimes? Courts? Legislatures? Juries? Defend your answer.

3. In deciding whether the death penalty for child rape is cruel and unusual, is it relevant that Louisiana is the only state that punishes child rape with death?

4. According to the Court, some crimes are worse than death. Do you agree? Is child rape one of them? Why or why not?

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Omer Ninham (Defendant) was convicted of firstdegree intentional homicide and was sentenced to life in prison without possibility of parole. Ninham filed a motion for relief from his life sentence, seeking to allow for the possibility of parole. The Circuit Court denied the motion. Ninham appealed. The Supreme Court affirmed.

On September 24, 1998, around dusk, 13-year-old Vang was bicycling home along Webster Avenue in Green Bay, Wisconsin. Vang’s older brother had sent Vang to the grocery store for tomatoes. Vang was returning home on his bicycle, carrying a plastic grocery bag filled with tomatoes, when he was approached by five juveniles: 14-year-old Ninham, 13-year-old Richard Crapeau (Crapeau), 13-yearold Jeffrey P., 14-year-old Amanda G., and 14-yearold Christin J.

Ninham and the other four juveniles did not know or recognize Vang. Moreover, by all accounts, Vang never said or did anything to provoke the five juveniles. Rather, at the time, Crapeau was upset with his mother and “wanted to fight or see a fight.” Consequently, Crapeau said to Ninham, “Let’s mess with this kid,” and Ninham responded, ‘”I got your back,’ meaning he would back [Crapeau] up in a fight.” Ninham and Crapeau began by verbally taunting Vang, while the other three juveniles “egg[ed]” them on. Ninham and Crapeau’s assaults escalated into physical attacks. Crapeau bumped into Vang’s shoulder and yanked his bicycle away from him. Crapeau also grabbed Vang’s grocery bag out of his hands and threw it in the direction of St. Vincent’s Hospital, located along the same street. When Vang asked for his bicycle back, Ninham punched Vang, knocking him down.

Vang got up and started running towards the nearby St. Vincent’s Hospital parking ramp. All five juveniles chased after Vang, eventually catching up to him on the top, or fifth floor, of the parking ramp. When they caught up to him, Crapeau punched Vang in the face. Vang repeatedly asked why they were trying to hurt him and pleaded with them to leave him alone. Instead, Ninham and Crapeau began pushing Vang back and forth between them, in a game Jeffrey P. referred to as “chicken.” Ninham punched Vang in the chest as he pushed him back and forth. Ninham then pinned Vang by his wrists against the parking ramp’s concrete wall. While Vang squirmed to get out of Ninham’s grasp, Crapeau again punched Vang in the face. According to Crapeau, Vang was crying and screaming, “Let me go.”

With Ninham still holding Vang by his wrists, Crapeau grabbed Vang’s ankles. Ninham and Crapeau then began swinging Vang back and forth out over the parking ramp’s concrete wall-a drop that measured nearly 45 feet to the ground. Vang was crying and screaming, begging Ninham and Crapeau not to drop him. While swinging Vang out over the wall, Crapeau let go of Vang’s feet and told Ninham to “drop him.” Ninham let go of Vang’s wrists, and in Crapeau’s words, Vang “just sailed out over the wall.”

Vang landed on his back on the parking ramp’s paved exit lane, 12 feet from the base of the ramp. Rescue personnel, dispatched at 8:03 P.M., detected a faint pulse from Vang. Vang was transported to St. Vincent’s Hospital where physicians were unable to revive him. An autopsy revealed that Vang suffered a blunt impact to his head and trunk and died from craniocerebral trauma due to a fall from height.

Ninham and the other four juveniles never checked on Vang’s condition and instead ran from the scene. Still, the Green Bay Police Department was able to focus its investigation on the five juveniles after some of them, in particular, Jeffrey P. and Amanda G., indicated to relatives and police that they knew who was responsible for Vang’s death. In his statement to police, Jeffrey P. described how Ninham stood for several seconds looking over the edge of the wall at Vang below. Ninham then looked at Jeffrey P. and said, “Don’t say nothing. Better not say shit.”

The pre-sentence investigation (PSI) revealed that “Ninham emanates from an extremely dysfunctional family structure,” in which both of his parents and several of his siblings engage in severe substance abuse and domestic violence. The PSI described Ninham as a “serious substance abuser” who snorted cocaine on a weekly basis and, since grade school, drank alcohol every day, often alone, and usually to the point of unconsciousness. The PSI also revealed that Ninham, a member of the Menominee Indian Tribe, claimed to have a newfound interest in Native American spirituality.

In addition, the PSI described the Vang family as devastated by the loss of their son and brother. Vang’s parents indicated that they fled Laos and Thailand because they believed that the United States would be a safer and more prosperous country to raise their children; however, according to the Yangs, they fled evil only to discover it in a different place. Vang’s parents further expressed that they had lost faith in the basic goodness of people and that their remaining children are fearful of leaving the safety of their home.

Relevant to this case, at the sentencing hearing, Vang’s brother, Seng Say Vang (Seng Say), gave a statement on behalf of Vang’s family and friends. Seng Say asked the circuit court to impose on Ninham the maximum sentence of life imprisonment without parole …. Seng Say then articulated to the circuit court a belief held by his family’s Hmong culture: In our Hmong culture we believe that the spirit of a murdered person cannot be set free to go in peace until the perpetrators be brought to justice. Therefore, we ask the Court, who is the only one to have the power to set free the spirit of our beloved son, brother, and friend, Zong, to go in peace by bringing Omer Ninham and his accomplices to justice.

Ninham also spoke at sentencing. He told the circuit court that he was sorry about Vang’s death, but “there wasn’t nothing I could do. I wasn’t there. I’m going to keep saying that until the day I die. I was not there, and that’s the honest truth.”

In imposing Ninham’s sentence, the circuit court considered three primary factors: the gravity of the offense, the character of the offender, and the need to protect the public. First, the circuit court regarded the gravity of the offense as “beyond description” and indisputably “horrific.” The circuit court noted that the offense has had an indescribable impact on Vang’s family and friends and on the Green Bay community. Second, concerning the character of the offender, the circuit court “conceded for the sake of discussion that Omer Ninham is a child” but nevertheless described Ninham as “a frightening young man.” The circuit court acknowledged that Ninham derives from a dysfunctional family but refused to let that excuse Ninham’s conduct, explaining that Ninham is “a child of the street who knew what he was doing …. ” Third, the circuit court reasoned that the community needs to be protected from Ninham: “Society needs to know, and especially this community needs to know, that you can send your child to the grocery store and expect to see him again.”

First, we hold that sentencing a 14-year-old to life imprisonment without the possibility of parole for committing intentional homicide is not categorically unconstitutional. We arrive at our holding by applying the two-step approach employed by the United States Supreme Court, most recently in Graham, 130 S. Ct. 2011. First, we conclude that Ninham has failed to demonstrate that there is a national consensus against sentencing a 14-year-old to life imprisonment without parole when the crime is intentional homicide. Second, we conclude in the exercise of our own independent judgment that the punishment is not categorically unconstitutional.

In regard to Ninham’s second argument, we conclude that his sentence of life imprisonment without the possibility of parole is not unduly harsh and excessive. Under the circumstances of this case, Ninham’s punishment is severe, but it is not disproportionately so.

Third, we conclude that Ninham has not demonstrated by clear and convincing evidence that the scientific research on adolescent brain development to which he refers constitutes a “new factor.” While the studies themselves may not have been in existence at the time of Ninham’s sentencing, the conclusions they reached were widely reported.

Fourth, we conclude that Ninham has not demonstrated by clear and convincing evidence that the circuit court actually relied upon the religious beliefs of Vang’s family when imposing Ninham’s sentence. The decision of the court of appeals is affirmed.

The Eighth Amendment cruel and unusual punishment issue before this court is easy to state and difficult to decide. The question before the court is the constitutionality of imposing a death-in-prison sentence on a 14-year-old juvenile boy who committed an intentional, brutal, senseless, grotesque, reprehensible murder of a 13-year-old innocent stranger.

In Wisconsin, both the adult offender and the juvenile offender (10 years old or older) who have committed first-degree intentional homicide are treated the same: the maximum penalty is a death-in-prison sentence, that is, life in prison without the possibility of parole. The circuit court need not impose this maximum sentence. It did in the present case.

A death-in-prison sentence is the most severe penalty authorized in Wisconsin. This penalty means that “whatever the future might hold in store for the mind and spirit of the young juvenile, he will remain in prison for the rest of his days. A death-in-prison sentence is an especially severe punishment, made harsher for a young juvenile 14 years old or younger because of the increased time and proportion of life that the juvenile will serve in prison.

I conclude, as has the United States Supreme Court (Roper v. Simmons, 543 U.S. 551 [2005]), that the differences between juveniles and adults mean that juvenile offenders “cannot with reliability be classified among the worst offenders.” The three general differences are: (1) juveniles have a lack of maturity and an underdeveloped sense of responsibility resulting in impetuous and ill-considered actions and decisions; (2) juveniles are more susceptible to negative influences and outside pressures; and (3) the character of a juvenile is not as well formed as that of an adult.

Retribution is a legitimate penological goal, but retribution “must be directly related to the personal culpability of the criminal offender.” The case for retribution is not as strong with a minor as with an adult.” Accordingly, I conclude, that a juvenile cannot be sentenced to life without parole for a homicide committed when 14 years old or younger.

Questions

1. Summarize the majority’s four reasons for deciding that Omer Ninham’s sentence to life in prison without possibility of parole is not cruel and unusual punishment.

2. Summarize the dissent’s reason for arguing that “death in prison” for a juvenile is cruel and unusual punishment.

3. The U.S. Supreme Court has agreed to hear the case in 2012. In your opinion, how should SCOTUS rule? Defend your answer.

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Douglas E. Metzger was convicted in the municipal court of the city of Lincoln, Nebraska, of violating § 9
.52.100 of the Lincoln Municipal Code. The District Court, Lancaster County, affirmed the District Court
judgment. Metzger appealed to the Nebraska S
upreme Court. The Supreme Court reversed and
dismissed the District Court’s judgment. KRIVOSHA, CJ.

FACTS Metzger lived in a garden
–
level apartment located in Lincoln, Nebraska. A large window in the
apartment faces a parking lot that is situated on the n
orth side of the apartment building. At about 7:45
A.M. on April 30, 1981, another resident of the apartment, while parking his automobile in a space
directly in front of Metzger’s apartment window, observed Metzger standing naked with his arms at his
side
s in his apartment window for a period of five seconds. The resident testified that he saw Metzger’s
body from his thighs on up.

The resident called the police department, and two officers arrived at the apartment at about 8:00 A.M.
The officers testified

that they observed Metzger standing in front of the window eating a bowl of
cereal. They testified that Metzger was standing within a foot of the window, and his nude body, from
the mid
–
thigh on up, was visible. The pertinent portion of § 9.52.100 of the
Lincoln Municipal Code,
under which Metzger was charged, provides as follows: “It shall be unlawful for any person within the
City of Lincoln … to commit any indecent, immodest or filthy act in the presence of any person, or in
such a situation that pers
ons passing might ordinarily see the same.”

OPINION

The … issue presented to us by this appeal is whether the ordinance, as drafted, is so vague as to be
unconstitutional. We believe that it is. Since the ordinance is criminal in nature, it is a fundam
ental
requirement of due process of law that such criminal ordinance be reasonably clear and definite.

The ordinance in question makes it unlawful for anyone to commit any “indecent, immodest or filthy
act.” We know of no way in which the standards requir
ed of a criminal act can be met in those broad,
general terms. There may be those few who believe persons of opposite sex holding hands in public are
immodest, and certainly more who might believe that kissing in public is immodest. Such acts cannot
consti
tute a crime. Certainly one could find many who would conclude that today’s swimming attire
found on many beaches or beside many pools is immodest. Yet, the fact that it is immodest does not
thereby make it illegal, absent some requirement related to the h
ealth, safety, or welfare of the
community.

The dividing line between what is lawful and what is unlawful in terms of “indecent,” “immodest,” or
“filthy” is simply too broad to satisfy the constitutional requirements of due process. Both lawful and
unlawf
ul acts can be embraced within such broad definitions. That cannot be permitted. One is not able
to determine in advance what is lawful and what is unlawful. We therefore believe that § 9 .52.100 of
the Lincoln Municipal Code must be declared invalid. Beca
use the ordinance is therefore declared
invalid, the conviction cannot stand. We do not attempt, in this opinion, to determine whether
Metzger’s actions in a particular case might not be made unlawful, nor do we intend to encourage such
behavior. Indeed, i
t may be possible that a governmental subdivision using sufficiently definite language
could make such an act as committed by Metzger unlawful. Reversed and dismissed.

Douglas E. Metzger was convicted in the municipal court of the city of Lincoln, Nebraska, of violating § 9
.52.100 of the Lincoln Municipal Code. The District Court, Lancaster County, affirmed the District Court
judgment. Metzger appealed to the Nebraska Supreme Court. The Supreme Court reversed and
dismissed the District Court’s judgment. KRIVOSHA, CJ.
FACTS Metzger lived in a garden-level apartment located in Lincoln, Nebraska. A large window in the
apartment faces a parking lot that is situated on the north side of the apartment building. At about 7:45
A.M. on April 30, 1981, another resident of the apartment, while parking his automobile in a space
directly in front of Metzger’s apartment window, observed Metzger standing naked with his arms at his
sides in his apartment window for a period of five seconds. The resident testified that he saw Metzger’s
body from his thighs on up.
The resident called the police department, and two officers arrived at the apartment at about 8:00 A.M.
The officers testified that they observed Metzger standing in front of the window eating a bowl of
cereal. They testified that Metzger was standing within a foot of the window, and his nude body, from
the mid-thigh on up, was visible. The pertinent portion of § 9.52.100 of the Lincoln Municipal Code,
under which Metzger was charged, provides as follows: “It shall be unlawful for any person within the
City of Lincoln … to commit any indecent, immodest or filthy act in the presence of any person, or in
such a situation that persons passing might ordinarily see the same.”
OPINION
The … issue presented to us by this appeal is whether the ordinance, as drafted, is so vague as to be
unconstitutional. We believe that it is. Since the ordinance is criminal in nature, it is a fundamental
requirement of due process of law that such criminal ordinance be reasonably clear and definite.
The ordinance in question makes it unlawful for anyone to commit any “indecent, immodest or filthy
act.” We know of no way in which the standards required of a criminal act can be met in those broad,
general terms. There may be those few who believe persons of opposite sex holding hands in public are
immodest, and certainly more who might believe that kissing in public is immodest. Such acts cannot
constitute a crime. Certainly one could find many who would conclude that today’s swimming attire
found on many beaches or beside many pools is immodest. Yet, the fact that it is immodest does not
thereby make it illegal, absent some requirement related to the health, safety, or welfare of the
community.
The dividing line between what is lawful and what is unlawful in terms of “indecent,” “immodest,” or
“filthy” is simply too broad to satisfy the constitutional requirements of due process. Both lawful and
unlawful acts can be embraced within such broad definitions. That cannot be permitted. One is not able
to determine in advance what is lawful and what is unlawful. We therefore believe that § 9 .52.100 of
the Lincoln Municipal Code must be declared invalid. Because the ordinance is therefore declared
invalid, the conviction cannot stand. We do not attempt, in this opinion, to determine whether
Metzger’s actions in a particular case might not be made unlawful, nor do we intend to encourage such
behavior. Indeed, it may be possible that a governmental subdivision using sufficiently definite language
could make such an act as committed by Metzger unlawful. Reversed and dismissed.