§ 15.02 Temporal Concurrence

§ 15.02 Temporal Concurrence

Lack of temporal concurrence occurs when the mens rea of an offense exists before or after, but not during, the commission of the actus reus.

[A] Mens Rea Preceding Actus Reus

Occasionally, a defendant's mens rea will precede the actus reus of the offense but be absent when she acts. For example, suppose that D intends to kill V, plans the killing, but never has the opportunity to implement the plan. Later, she changes her mind, abandons the scheme, and befriends V. Thereafter, D and V go hunting, during which time D innocently (non-negligently) kills V. On these facts, D is not guilty of criminal homicide. When she had the mens rea, there was no actus reus. When she subsequently killed V, she had no culpable state of mind.

The concurrence principle is satisfied, however, if the voluntary act that causes the social harm concurs with the mens rea, although the social harm itself occurs later. For example, suppose that D, intending to kill V, mortally wounds V. V dies in the hospital three months later, by which time D has expressed genuine remorse and no longer wants V to die. Here, D is guilty of murder. The critical issue is whether the lethal act—the firing of the gun—concurred with the mens rea, and not whether the mens rea was present at the time of the death (the social harm).

[B] Actus Reus Preceding Mens Rea

Temporal concurrence is absent if the actus reus precedes the mens rea. For example, suppose that D1 breaks into and enters V1's home at night in order to escape the cold. After she enters, D1 decides to steal V1's property. D1 is prosecuted for burglary, defined as "breaking and entering the dwelling house of another at night, with intent to commit a felony therein." On these facts, D1 is not guilty of burglary because the specific intent of the offense ("intent to commit a felony therein") arose after the occurrence of the voluntary acts that caused the social harm of burglary ("breaking and entering the dwelling house of another at night").³ Likewise, D2 is not guilty of murder if she innocently takes V2's life, after which she decides that she is glad that she killed V2.⁴

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Notes:

^[3] See Cooper v. People, 973 P.2d 1234 (Colo. 1999), overruled on other grounds, Griego v. People, 19 P.3d 1 (Colo. 2001) (C claimed he broke...