§ 30.04 Accomplice Liability: Assistance

§ 30.04 Accomplice Liability: Assistance

[A] Types of Assistance

[1] In General

An accomplice is a person who, with the requisite mens rea, assists the primary party in committing an offense. Generally speaking, there are three forms of assistance: (1) assistance by physical conduct; (2) assistance by psychological influence; and (3) assistance by omission (assuming that the omitter has a duty to act).

[2] Physical Conduct

The most straightforward cases of assistance involve physical conduct. For example, S may assist P by furnishing him with an instrumentality to commit an offense,45 or by providing the principal in the first degree with a service, such as "casing" the scene in advance,46 locking the door to keep an assault victim from escaping,47 or driving a "getaway" car from the scene of the crime.

[3] Psychological Influence

Assistance by psychological influence occurs when S incites, solicits, or encourages P to commit the crime. The most controversial cases involve assistance by encouragement because juries and courts must often speculate as to whether the secondary party has psychologically influenced the primary party by his presence or words.

May mere presence at the scene of a crime constitute encouragement? Mere presence, standing alone, is insufficient.48 It is frequently said, as well, that presence at a crime scene, even when coupled with the undisclosed determination not to interfere,49 or passive acquiescence,50 is insufficient to convict a person as an accomplice. Even presence at the scene, coupled with the hidden intention to aid if necessary, is also insufficient.51 Thus, it has been held that an indictment founded simply on the allegation that S accompanied P to the location of a crime and watched as the offense occurred, was insufficient to sustain an accomplice prosecution.52

While mere presence is insufficient to justify conviction as an accomplice, presence coupled with very little else can justify a finding of accomplice liability based on psychological encouragement.53 For example, encouragement may be found from the expressed assurance of a bystander that he will not interfere with the perpetrator's plans.54 Likewise, as one court explained, "[i]t is sufficient encouragement that the accomplice is standing by at the scene ready to give some aid if needed, [if] . . . the principal [is] actually [aware] of the accomplice's intention." Proof of presence, coupled with a prior agreement to assist if necessary, will also support a claim of encouragement, even if such assistance is not rendered.55 Thus, assistance-by-encouragement serves as a powerful, and yet highly speculative, basis for allowing accomplice liability.

[4] Assistance by Omission

In general, neither failure to inform police authorities of an impending crime, nor failure to attempt to stop a crime that is occurring, will establish accomplice liability.56 The result is different, however, if the omitter has a legal duty to intervene. For example, a property owner may have a legal duty to prevent the commission of a crime on his property, e.g., S's knowing failure to prevent the commission of a drug offense on his property would justify a finding of assistance-by-omission.57 Likewise, for example, a mother may be convicted as an accomplice in the commission of an offense committed by another person upon her child, if she fails to make efforts to prevent commission of the offense.58 Similarly, the failure of a police officer to stop a crime, if coupled with the requisite mens rea, would support a conviction on the basis of accomplice liability.

[B] Amount of Assistance Required

[1] In General

Under the common law, a person is not an accomplice unless his conduct (or omission) in fact assists in the commission of the offense. Thus, S is not an accomplice in the commission of a robbery if he is present at the scene of the crime in order to aid P if necessary, but his assistance is not called upon, and assuming there are no additional facts to support a claim of assistance by encouragement.59 Likewise, S is not an accomplice of P if he performs an act to assist P, but his conduct is wholly ineffectual. For example, S is not an accomplice if he utters words of encouragement to P who fails to hear them, or if S opens a window to allow P to enter a dwelling unlawfully, but P (unaware of the open window) enters through a door.60

Once it is determined that S has assisted P, however, the degree of aid or influence provided is immaterial.61 Any aid, no matter how trivial, suffices.62 For example, S may be deemed an accomplice of P if, acting with the requisite mens rea, he: (1) purchasing a ticket to attend a performance by a musician illegally in the country, in order to write a review for a magazine;63 (2) holds P's child while P commits the crime;64 (3) prepares food for P to give P sustenance during the planning or commission of the crime;65 or (4) provides moral support by asking P to bring home bananas from the grocery store that P plans to rob.66 How can this be? Do we assume that these crimes would not have...

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