Chapter 9.10
CRIMINAL LIABILITY – DEFENSES

Sections:

9.10.010    Requirement of a voluntary act – Omission as basis of liability – Possession as an act.

9.10.020    General requirements of culpability.

9.10.030    Construction of ordinances with respect to culpability requirements.

9.10.040    Criminal liability of corporations and persons acting or under a duty to act in their behalf.

9.10.050    Criminal attempt.

9.10.060    Liability for conduct of another – Complicity.

9.10.070    Insanity.

9.10.080    Duress.

9.10.090    Criminal conspiracy.

9.10.010 Requirement of a voluntary act – Omission as basis of liability – Possession as an act.

(1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or an omission to perform an act of which he is physically capable.

(2) The possession of property is a voluntary act if the actor was aware of his physical possession of such property or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

(3) For purposes of this section:

(a) “Voluntary act” means a bodily movement performed consciously as a result of the actor’s effort or determination.

(b) “Omission” means a failure to perform an act as to which a duty of performance is imposed by law.

(4) No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration in determining such mental state. For purposes of this section, the term “intoxication” means a disturbance of mental or physical capacities resulting from the introduction of substances, including but not limited to alcohol and drugs. [Ord. IV-6-2 § 2.01, 1986.]

9.10.020 General requirements of culpability.

(1) Kinds of Culpability Defined.

(a) Intent. A person intends or acts intentionally or with intent to accomplish a result or to engage in conduct described by the section defining the offense when his conscious objective or purpose is to accomplish such a result or to engage in conduct of that nature.

(b) Knowledge. A person knows or acts knowingly or with knowledge with respect to:

(i)  A result described by a section defining an offense, when he is aware that it is substantially certain that his conduct will cause such result; or

(ii) Conduct described by a section defining an offense; when he is aware that his conduct is of that nature; or

(iii) A circumstance described by a section defining an offense, when he is aware that such circumstance exists; or

(iv) A particular fact, when he is aware that there is a high probability that such facts exist.

(c) Recklessness. A person is reckless or acts recklessly when he knows of and consciously disregards a substantial and unjustifiable risk that:

(i)  The result described by a section defining an offense may occur; or

(ii) A circumstance described by a section defining an offense exists, and when the disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would exercise in the situation.

(d) Criminal Negligence. A person is criminally negligent or acts with criminal negligence when he fails to be aware of a substantial and unjustifiable risk that:

(i) The result described by a section defining an offense may occur; or

(ii) A circumstance described by a section defining an offense exists, and the failure to be aware of such risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in that situation.

(2) Prescribed Culpability Requirement Applies to All Material Elements. When a statute or ordinance defining an offense prescribes as an element thereof a specified mental state, such mental state is deemed to apply to every material element of the offense unless an intent to limit its application clearly appears.

(3) Substitutes for Criminal Negligence – Recklessness and Knowledge. When a statute or ordinance provides that criminal negligence suffices to establish an element of an offense, such element also is established if a person acts intentionally, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts intentionally or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts intentionally. [Ord. IV-6-2 § 2.02, 1986.]

9.10.030 Construction of ordinances with respect to culpability requirements.

Where an ordinance defining an offense does not clearly indicate a legislative intent to impose absolute liability, it should be construed as defining an offense requiring one of the mental states described in LCMC 9.10.020. [Ord. IV-6-2 § 2.03, 1986.]

9.10.040 Criminal liability of corporations and persons acting or under a duty to act in their behalf.

(1) As used in this section:

(a) “Agent” means any director, officer or employee of a corporation, or any other person who is authorized to act in behalf of the corporation.

(b) “Managerial agent” means an officer or director of a corporation or any other person in a position of comparable authority with respect to the formulation of corporate policy or the supervision in a managerial capacity of subordinate employees.

(c) “Corporation” has its ordinary meaning and also includes, but is not limited to, partnerships, professional service corporations, societies and other unincorporated associations whether organized for profit or nonprofit.

(2) A corporation is guilty of an offense when:

(a) The conduct constituting the offense consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by law; or

(b) The conduct constituting the offense is engaged in, authorized, solicited, requested, commanded, or recklessly tolerated by the board of directors or by a managerial agent acting within the scope of his employment and in behalf of the corporation; or

(c) The conduct constituting the offense is engaged in by an agent of the corporation, other than a managerial agent, while acting within the scope of his employment and in behalf of the corporation and the offense is one defined by an ordinance which indicates a legislative intent to impose such criminal liability on a corporation.

(3) A person is criminally liable for conduct constituting an offense which he performs or causes to be performed in the name of or in behalf of a corporation to the same extent as if such conduct were performed in his own name or behalf.

(4) Whenever a duty to act is imposed by law upon a corporation, any agent of the corporation who knows he has or shares primary responsibility for the discharge of the duty is criminally liable for a reckless or, if a managerial agent, for a criminally negligent omission to perform the required act to the same extent as if the duty were by law imposed directly upon such agent. [Ord. IV-6-2 § 2.04, 1986.]

9.10.050 Criminal attempt.

(1) A person is guilty of an attempt to commit a crime if, with intent to commit a specific crime, he does any act which is a substantial step toward the commission of that crime.

(2) If the conduct in which a person engages otherwise constitutes an attempt to commit a crime, it is no defense to a prosecution of such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission if such crime could have been committed had the attendant circumstances been as such person believed them to be.

(3) When the actor’s conduct would otherwise constitute a criminal attempt under this section, it is an affirmative defense that, under circumstances manifesting a complete and voluntary renunciation of his criminal intent, he:

(a) Gave timely warning to law enforcement authorities, or

(b) Otherwise made a good faith attempt to prevent the commission of the crime.

(4) A person may not be convicted on the basis of the same course of conduct of both an attempt to commit an offense and either complicity in or the commission of that offense.

(5) This section shall not apply to liability for the conduct of another as defined in LCMC 9.10.060. [Ord. IV-6-2 § 2.05, 1986.]

9.10.060 Liability for conduct of another – Complicity.

(1) A person is guilty of an offense if it is attempted or committed by the conduct of another person for which he is legally accountable.

(2) A person is legally accountable for the conduct of another person when:

(a) Acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; or

(b) He is made accountable for the conduct of such other person by this title or by the law defining the offense; or

(c) He is an accomplice of such other person in the commission of the offense.

(3) A person is an accomplice of another person in the commission of the offense if:

(a) With the intent of promoting or facilitating the commission of the offense, he:

(i) Solicits, commands, or requests such other person to commit it; or

(ii) Aids or agrees to aid such other person in planning or committing it; or

(b) His conduct is expressly declared by law to establish his complicity.

(4) Unless otherwise provided by this title or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:

(a) He is a victim of that offense; or

(b) The offense is so defined that his conduct is inevitably incident to its commission; or

(c) He terminates his complicity prior to the commission of the offense and citizen gives timely warning to the law enforcement authorities or otherwise makes a good faith effort to prevent the commission of the offense.

(5) An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.

(6) A person may not be convicted on the basis of the same course of conduct of both the commission of and complicity in that offense. [Ord. IV-6-2 § 2.06, 1986.]

9.10.070 Insanity.

To establish the defense of insanity, it must be shown that:

(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:

(a) He was unable to perceive the nature and quality of the act with which he is charged; or

(b) He was unable to tell right from wrong with reference to the particular act charged.

(2) The defense of insanity must be established by a preponderance of the evidence. [Ord. IV-6-2 § 2.07, 1986.]

9.10.080 Duress.

(1) In any prosecution for a crime, it is a defense that:

(a) The actor participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the actor that in case of refusal he or another would be liable to immediate death or immediate grievous bodily harm; and

(b) That such apprehension was reasonable upon the part of the actor; and

(c) That the actor would not have participated in the crime except for the duress involved.

(2) The defense of duress is not available if the actor intentionally or recklessly places himself in a situation in which it is probable that he will be subject to duress.

(3) The defense of duress is not established solely by a showing that a married person acted on the command of his or her spouse. [Ord. IV-6-2 § 2.08, 1986.]

9.10.090 Criminal conspiracy.

(1) A person is guilty of criminal conspiracy when with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement.

(2) It shall not be a defense to criminal conspiracy that the person or persons with whom the accused is alleged to have conspired:

(a) Has not been prosecuted or convicted; or

(b) Has been convicted of a different offense; or

(c) Is not amenable to justice; or

(d) Has been acquitted; or

(e) Lack the capacity to commit an offense.

(3) Criminal conspiracy is a:

(a) Misdemeanor when an object of the conspiratorial agreement is a gross misdemeanor or misdemeanor. [Ord. IV-6-2 § 2.09, 1986.]