§ 15.04 Special Problem: Temporally Divisible Acts and/or Omissions

§ 15.04 Special Problem: Temporally Divisible Acts and/or Omissions

In most cases application of the concurrence principle is straightforward. Difficulties arise, however, when a person commits temporally divisible acts only one of which causes the social harm, or when the defendant's mens rea concurs with an omission that follows an innocent act.

For example, in State v. Rose,⁶ R, an automobile driver, was prosecuted for negligent homicide in the death of V, a pedestrian. The evidence apparently showed that R non-negligently struck V, whose body wedged underneath R's car. However, R negligently continued to drive some distance, dragging V's body along. Medical experts could not determine whether V died at impact or as the result of being dragged.

Based on this evidence, the court properly reversed R's conviction. Although all of the elements of manslaughter were present—R committed a voluntary act; she caused the death of V; and as to her post-impact conduct, R acted with the requisite negligent mens rea—the prosecutor did not prove beyond a reasonable doubt that the elements of manslaughter concurred. Essentially, R committed two divisible voluntary acts or series of acts: First, she collided with V; second, she dragged V's body after impact. Regarding the first voluntary act, R lacked a mens rea. Regarding the second voluntary act (or, if you will, R's omission of failing to stop), R was criminally negligent. There was insufficient medical testimony, however, to prove beyond a reasonable doubt that this negligent conduct/omission caused the death.⁷

In exceptional factual circumstances, courts have been known to ignore the concurrence requirement. In one case, D1, intending to kill V1, poisoned V1. Although the poison left V1 unconscious, it did not kill her. Thereafter, believing that V1 was dead, D1 decapitated V1, now actually causing her death.⁸ In another case, D2 struck V2 over the head; thinking that V2 was now dead, D2 threw V2 over a cliff, in order to make it appear that V2 had died from an accident. V2 died from exposure after the fall.⁹

In both cases, a defendant, with the intent to kill the victim, performed a voluntary act (poisoning V1; striking V2) that did not cause death, and then committed a second voluntary act (decapitating V1; throwing V2 over a cliff) that did cause death but without the requisite intent to kill (because the defendant thought that the deed had already been completed). Nonetheless, the murder convictions in both...