crimlaw, fall 2010, final exam part 2, final (2)

8/3/2019 Crimlaw, Fall 2010, Final Exam Part 2, Final (2)

http://slidepdf.com/reader/full/crimlaw-fall-2010-final-exam-part-2-final-2 1/16

Part II: Essay Question

(Suggested Time: 90 Minutes)

Eighteen-year-old Becky Benson has grown up on the poor side of Sun City. In Sun

City North, the neighborhood where Becky lives, the streets are ruled by the Sharks, a gang towhich Becky’s former boyfriend, Adam Arnott, belongs. Several blocks away begins theneighborhood of Sun City South, which is controlled by the Sharks’ arch-rivals, the Jets. Beckylives with her Mom and Dad just down the block from Adam’s house. Adam and the Sharksusually hang out on or near the street corner in front of Becky’s house. Becky and Adam dated briefly their freshman year in high school. Becky had broken up with him, and their relationshiphad been tense and hostile ever since.

One afternoon a few Sharks, including Adam, are hanging out at their usual corner whenBecky walks by on her way home. Remembering that it is her birthday, Adam and the Sharks jeeringly sing “Happy Nerd Day” as she passes by. “Shut up, jerks!!” says Becky, but, seeing

that she is upset, the Sharks merely sing the song again. “Just you wait!” Becky finally shouts.“I’m going to have a REAL birthday party tonight – the JETS are coming to my house! ‘Bouttime this neighborhood saw some REAL men!!”. And she storms off. “Any Jets show up on our turf, they’re going to get BLOODY!!” yells Adam in her wake. “HAH! The Jets will wipe thefloor with you sissies in no time!” responds Becky, as she opens the front door to her house anddisappears inside. Adam tells his fellow Sharks to collect as many members of the gang as theycan and to meet him back at the drugstore at 8:30 that night. He then goes to the house of his best friend, Carl Chadwick, and tells Carl to collect a dozen baseball bats and bring them toBenson Drugstore at 8:30 p.m. Carl leaves to carry out this commission, and Adam spends therest of the afternoon rounding up his fellow Sharks and telling them about the meeting that night.

At about 8:15 p.m. the Sharks begin to collect on the corner in front of Benson Drugs.Duke Drayton, a member of the gang, arrives. Duke tells Carl Chadwick and another gangmember, Earl Engle, that he (Duke) is “carrying” (a gun). Adam is not present at the time Dukesays this. By 8:45 p.m. Adam and the Sharks are all present on the corner, swinging their batsand talking tough while they wait.

By 9:30 p.m., just as the Sharks are wondering whether any Jets are going to show, theysee a group of three young men coming down the street from the direction of Sun City South.The three are, in fact, members of the Jets, but they are not coming to fight. They have come because Becky Benson had told their leader, Greg Garrish, that the Sharks had invited them to a“peace council” to discuss ending the two gangs’ longstanding rivalry. The three Jets are quickly

surrounded by the bat-wielding Sharks. Greg Garrish tries to explain that they were expecting totalk peace. Adam Arnott, brandishing a bat, screams at the Jets to clear out of the neighborhood.Suddenly Duke Drayton pulls a chrome-plated .32-caliber semi-automatic pistol from hiswaistband and points it at Greg Garrish. Garrish turns to run, but Drayton fires four times,hitting Garrish in the chest and stomach. A neighbor quickly calls an ambulance, but GregGarrish is later pronounced dead on arrival at the hospital.

1



After seeing Garrish fall, the Sharks drop their bats and run in different directions. AdamArnott and Eric Engle run to Carl Chadwick’s house, where Adam, Carl, and Eric decide to play Russian Roulette with a pistol belonging to Carl’s Dad. Mr. Chadwick is not at home but Carl

knows where the pistol is kept. Kris Chadwick, Carl’s younger brother, wants to play too but Carl tells

him he’s not old enough and to “get lost.” In front of the group, Carl demonstrates that the pistol is

empty; loads one bullet into it; and spins the chamber. The game begins. Under the rules, each player holds the pistol to his head; pulls the trigger; spins the chamber; and hands the gun to thenext player. After one round with no injuries to any of the three players, Carl calls a time out togo look into his Dad’s liquor cabinet for some “refreshments.” During this interval, Kris, whohad been hanging out in the room watching the game, takes the pistol, points it at his own head,and fires. Unfortunately the gun goes off, killing Kris Chadwick instantly.

Meanwhile, Becky Benson soon hears about the fatal encounter between the Sharks andGreg Garrish. That same night she packs a bag and takes the bus out of Sun City. She travels300 miles East to Fog City, the capital of Fogstate, where her aging uncle, Lyle Lightner, lives ina large house near the center of town. Becky moves in with Uncle Lyle, takes a job as a waitressat the Hideaway Café down the street from her uncle’s house, and begins dating MikeMitchelson, the owner of the Hideaway Café. Soon thereafter, Lyle Lightner dies (of naturalcauses), leaving his house to Becky.

Mike moves in with Becky, but the relationship does not go well. Mike becomesincreasingly abusive. At first the abuse is mainly verbal, but eventually it becomes physical.Becky refuses to press criminal charges but after a particularly bad beating, she gets a court order barring Mike from the house. He moves out, vowing revenge against Becky. One night, uponher return from work, Becky fails to notice that the lock to the front door of the house has been jimmied. She sees nothing amiss until she walks into the kitchen. There, sitting at the tableamid a half-dozen empty beer bottles, is Mike. “Well, hallo there,” he drawls, slurring hiswords. “Long time no see – Bitch!” Becky turns to run, but Mike grabs her before she canescape. “Not so fast, not so fast!” he says, holding her tight. “You just stay put now, you hear me?” Mike picks her up and carries her down to the windowless basement of the house, wherehe ties her to a chair and then stands, watching her. “I TOLD you that if you didn’t take me back, I’d finish you for good, now didn’t I?” he drawls, finishing the beer and then smashing the bottle against a wall. “And I am a man of my word.” He approaches the petrified Becky,holding the neck of the broken bottle – its ragged ends now as sharp as razors – in front of her face. Becky opens her mouth to scream. But for once, her luck is good. As Mike approaches, broken bottle in hand, the front doorbell rings. Someone is at the house. Mike looks upward,then back at Becky. “I’m going to get rid of that problem; and then I’ll be back,” he tells Becky,leaving her there and going back up the stairs.

Becky spends the next hour trying to work her way free of the ropes that bind her to thechair – but to no avail. Sobbing, she reflects on the many times Mike has beaten her; on thehospitalization she’d recently endured after one such beating; on the time when, after she hadfled to her best friend Nancy Nimble’s house, he had come over, barged into the house, anddragged her back by the hair.

Suddenly, in the midst of Becky’s gruesome reverie, the basement door opens and Nancy Nimble appears. “He’s drunk and he fell asleep,” says Nancy, coming swiftly down the stairs

2



holding a knife. “I saw him through the kitchen window when he carried you down here. I’mgoing to cut you loose.” In a few minutes Becky is free. She and Nancy tiptoe past Mike, whosits motionless with his head on the kitchen table, snoring. Grabbing her purse, Becky leaves thehouse; says a quick thanks to Nancy; jumps in the SUV and speeds away.

Becky wants to get out of Fog City for a while. But first, she drives across town andmeets with Orlando Osterville, a local drug lord with a reputation for “disappearing” people hedoes not like. Becky explains her predicament with Mike; produces $10,000 in cash; and asksOsterville to please “find somebody who can rid the world of that bastard.” Orlando Ostervilleassures her that he will “take care of it”; watches Becky drive away; pockets the cash; and takesno action against the life or safety of Mike Mitchelson.

Becky, still terrified from her ordeal that day, heads out of Fog City. On the way she picks up a hitchhiker, Peter Piper, tells him she is making for some nearby mountains, andinvites him to come along with her. Peter agrees. It is night, and dark, and by midnight she andPiper realize that they are lost on the mountain roads. It has started to snow, making visibility

extremely poor, and neither Becky nor Peter notices when they take a turn which leads them off the main road and onto a privately owned dirt road. In fact the side road is normally locked andchained in wintertime, but several weeks before Robert Rickover, an avid deerhunter, had cut thelock and driven through the gate in order to do some out-of-season shooting in the deer-filledmountain woods nearby. Afraid of being caught hunting out of season (a third-degree felony inthe state), Robert had chosen the private road because he knew it was isolated and was almostnever traveled in winter. From a hunting perspective, it was a good choice – Robert had killedtwo enormous deer that day and had successfully lugged the two carcasses back up the road andhome.

Becky and Peter are not so lucky. A few miles down the road their car becomes stuck inthe snow. Unable to free it, they spend the rest of the night in the car, discussing what to do.They have some water in the car – enough to last two or three days – but no food. The nextmorning Peter announces that he intends to go for help. He leaves Becky in the vehicle, wherethere is enough gas to keep her heated for a day or two, and heads back up the road toward thefork where they had taken a wrong turn. But, barely a mile up the road, Peter slips on somesnow-covered ice, tumbles down a ravine, and strikes his head on the rocks below. He dieswithout regaining consciousness.

Becky waits all day and the following night for Peter to come back. When he does notreturn by the next morning, Becky realizes that something must have happened and that she mustgo for help herself. Becky takes to the road on foot, in the opposite direction from that chosen by Peter. Less than a mile down the road, Becky comes upon a small hunting lodge. The lodgeis closed for the winter, the doors locked and barred. By smashing a window Becky gainsentrance, and in the kitchen she finds an abundance of canned and dried foods as well as water.There is no phone service or electricity, but in the basement of the lodge there is at least twomonths worth of firewood and a large supply of lanterns and candles.

Becky lives quite comfortably at the lodge for some weeks. Eventually the owner of thelodge, making a regular visit to check on his property, discovers her living there and calls the

3



police, who come and bring Becky back to Fog City. Peter Piper’s body is discovered thefollowing spring.

*** *** *** *** *** ***

Write an essay analyzing the criminal law issues that could arise under the above fact pattern. With respect to each issue you identify, you should decide what legal actions could be brought, what the best defense(s) would be, and which party should ultimately prevail. You should focus your discussion on crimes we covered during the course, but you may assumethat the attached statutes were in force at all times during the eventsdescribed above.

4



STATUTES

Sec. 350 Criminal Battery

A person commits criminal battery when (s)he uses unlawful force against another, resulting inharmful or offensive physical contact with the other.

Sec. 840 Criminal Trespass

A person commits criminal trespass when, with the purpose of committing a crime, (s)heknowingly enters onto the property of another without the owner’s permission and without anyother legal authority.

Criminal trespass is a felony of the fourth degree.

MODEL ANSWER Becky and Adam could be guilty of conspiracy to begin a gang fight. When Becky walks

by Adam and tells them about bringing the jets to the party, Adam replies that things are going to

get Bloody, this action could signify a conspiracy agreement, or the actus reus for a conspiracy

under Interstate Circuit, as both parties know the other is necessary for the conspiracy to be

successful, and both parties are acting unanimously. This verbal sparring, including statements

such as wiping the floor, could also be brought as some type of assault, as each had the intent,

evidenced by the nature of the comments, to startle and scare the other.

Adam is likely guilty of a conspiracy to gang fight as well. Under the interstate circuit

reading he rounds up his Sharks, telling them to collect as many members as they can for a fight,

and collecting baseball bats. Here, they all know that they need to be present for the gang fight to

be successful, or at least many need to be there for there to be a fight, and there is parallel action

in rounding up the gang members and baseball bats. Adam and the other presumed conspirators

could state that they were not all necessary to be there, that there could be a gang fight without

their presence, frustrating the conspiracy charge. They could also attempt to claim that this is one

5



of many small conspiracies, that these defendants had a common leader in Adam and were

independent of each other since not all were necessary for the fight to take place, however this

seems unlikely as their presence reinforces the gang and a number would be needed for the fight.

These individuals could also be guilty of a conspiracy to criminal trespass when they

assemble at the corner in front of Benson Drugs, if they are on the drug store's property.

Under the conspiracy, they all using Pinkerton liability could be liable for the killing of

Greg Garish. Here, Becky, Adam, and all gang members could be roped in on this. They could

attempt to claim that this was not within the scope of agreement. Since Adam told Carl to gather

baseball bats, it may not be foreseeable that someone would bring a gun. Under the holding of

bridges, however, these individuals are likely guilty, as it is foreseeable that an individual may be

killed and that someone would bring a gun to a gang fight. Here, this is similar to the Alvarez

case, as Pinkerton liability covered that individual, as here, because in a gang fight these

instances are foreseeable. In both instances, the partnership has continued, subjecting them to

Pinkerton liability.

The Jets gang could not be charged in the conspiracy, as they did not have they did not

agree to this action. They were under the impression that this was a peace talk, and therefore,

without a corrupt motive, although they are aware that the roles and unanimity need to be present

for there to be a conspiracy, they are likely absolved of liability without a corrupt motive. The

MPC says that there needs to be no corrupt motive for a conspiracy, but they are likely still not

liable as there is no evidence they had the mens rea for this type of agreement since they had not

agreed to this action.

Adam could potentially be liable accomplice liability in the killing. Here he sent Carl to

round up individuals and baseball bats for a gang fight. Under Hicks, this is actual aid given,

6



likely since he was encouraging the injury of Jets members. This satisfies the Wilcox and Talley

tests likely as well because it encouraged and facilitated a result respectively. Mens rea is more

difficult for this charge, as under Hicks, he must have intended to encourage the murder of

Garish, and he must have wanted to act in this way. Here he did want there to be a fight, but

murder is unclear. It could be held that he did want murder since he stated that the Jets were

going to get bloody. Under Luparello, he is likely guilty as an accomplice to the murder since a

natural and probable consequence of a gang fight is someone being killed. Under Roy, it is also

likely that he is guilty, since in the ordinary course of things someone could be killed in a gang

fight, however this is less certain, as the nature of their fights involving rounding up baseball bats

does not make it clear that ordinarily a death would result. Under the MPC, this offense could be

determined as fairly envisaged, or as a wholly different crime just like the analysis for the Roy

standard. The nexus requirement also must be satisfied for accomplice liability. Here there Adam

associated himself to have a purposive attitude under Gladstone, as he stated that things would be

bloody and encouraged the rounding up of baseball bats. He, under the MPC likely promoted and

facilitated the offense, because he broadcasted his intentions for a fight throughout the gang.

However, he could also be convicted of criminal facilitation if it is found that he did not have the

purpose to cause a murder since his specific intent for a killing is not certain.

Becky could also be seen as an accomplice for the killing of Garish. Here Becky has

given aid by hicks, because she stated that she was bringing the jets and states that they will wipe

the floor of the Sharks. She encouraged under Wilcox and could likely satisfy the actus reus test

for aiding. Her mens rea is more complex. Her specific purpose though, in doing that aiding is

unclear, as she said those words, but she told the Jets that they were going to a peace conference,

and likely did not intend for things to be violent, so under Hicks she may not have the mens rea

7



for this agreement under Hicks. Again in Luparello she can be guilty if this is a foreseeable

result. In Roy, if this is reasonably contemplated. Here this is a foreseeable result because she put

the Sharks in a fighting mood, however it could be claimed unforeseeable since she only invited

the Jets to a peace conference, and they came unarmed.

The Sharks and Becky and Adam could foreseeably be guilty of felony murder for the

murder of Garrish. Here they were committing a felony of criminal battery by using unlawful

force against the Jets. It is not clear that this force has been acted with, as they only surrounded

the individuals, but assuming that it has been begun, this felony, coupled with the death could

extend to all cofelons under the Coke conception of felony murder, and under the Serne

conception if this act, assaulting an individual is deemed known dangerous. It likely is since

gang fights area violent. Under stamp they are definitely because this holds felony murder for all

results regardless of foreseeability. Becky is likely not guilty again if she was intending to set up

a peace conference, as this would destroy her felony mens rea.

Here, Adam, and the Sharks have several defenses to the felony murder conviction. They

could attempt to claim that this was not inherently dangerous under Phillips because gang fights

can happen without deaths resulting. Under Stewart, the felony might not be inherently

dangerous because it is not dangerous as committed; this gang fight was only conducted with

baseball bats under the directions of Adam, and this would have not resulted in death. This fight

was likely inherently dangerous because fights are dangerous, epically if Hines is used holding

that any felony is inherently dangerous if committed per se, because there is a statute against

criminal battery.

8



They could assert that the killing was not in furtherance of the crime of a gang fight,

under a proximate cause theory because this killing would result in police showing up and there

being no gang fight, however this is an extremely stretched argument.

Their best defense to felony murder is that the felony merges under Burton because in

killing Garish, they were attempting to assault and this could have likely resulted in a killing.

There was no independent felonious purpose besides injuring severely the Jets and the killing

should likely merge.

The Sharks as a whole could state that this killing was a frolic of his own, absolving all

except Drayton. Becky could likely not be liable as her felony of verbal assault seems unlikely. If

she is guilty of conspiracy, she could be roped in as well.

Drayton is likely guilty of intentional murder under a Carroll standard, because intent can

form in an instant. Under Guthrie, he is not guilty because there was not time to weigh

consequences, he fired automatically. This could be a depraved heart murder, as he knew when

he pulled the gun and fired four times that there was a high objective likely hood of death and he

was aware of the recklessness of this conduct. Here the best defense that Gatith has is that this

was reasonably provoked because the Jets entered his territory, and were, from his point of view

about to engage in mutual combat. He can claim that when Adam screamed, this provoked him

even more and he lost it as a reasonable man might lose it. This defense likely fails under Maher,

and Girouard, as the killing must be reasonable that a reasonable man might have lost it, here

there are no words by the defendants that would provoke this action, they were talking peace,

and there were no actions that really provoked this either, entering territory should not be enough

for a reasonably provocation.

9



Mike could be guilty of the crime of verbal abuse, criminal battery and attempted murder.

Mike would be guilty of attempted murder under the MPC statute because he has likely taken a

substantial step towards killing her when he tied her up in a chair. Under

the Rizzo test, this could be argued as dangerous proximity since he held up a broken

bottle to her neck, however he could also get off on this test because he was interrupted and

unable to continue with his crime because of the doorbell ringing. Under the Eagleton test, he is

certainly not guilty because there are other acts that could be taken before killing her. That

completes the actus reus section, the mens rea is next. Mens rea for attempt requires a specific

intent to do the act. This can be inferred through the natural and probable consequences test from

Smallwood, and if he had objective knowledge to the risk and an objective likelihood that it

would be realized, he is likely guilty. Here he did have objective knowledge of the risk, as he

stated he wanted to kill her, and likely had objective likelihood of realizing it by knowing that a

broken bottle sharp as a razor would kill her. Under the MPC, he acted with the purpose of

causing her death, and would be likely satisfying the mens rea as well.

Mike's best defense is intoxication. Here he can claim that there was assault with an

intent to murder, and this is a specific intent crime under Hood so there should be no liability.

Mike has a half dozen empty beer bottles sitting on the table, he is slurring his words, and he

finishes a beer in front of her. He seems drunk and this could be formed as a specific intent

crime. On the other hand a court could construe deadly assault as simply a general intent crime

and he would have no excuse. He would also have no excuse of intoxication under Stasio,

because the harm done would be the same either way, and under the MPC because the harm

would have to negate an element of the crime, all likely satisfied here. Mike could attempt to

10



claim EED, but this is unlikely since the court held no in Cassass, and here they will hold no as

well since this is not objectively reasonably even if he subjectively obsessed over her.

Mike is likely liable of criminal battery, for the unlawful force that he did on Becky, he

both knew that this would result and wanted it to, and this is likely construed as a general intent

crime.

Perhaps Nancy could be guilty of criminal trespass, however, individuals are accorded a

defense, when others are accorded the self defense doctrine. Here, there was an imminent threat

to Becky because Mike was threatening her with death, and so Nancy is justified as well. Nancy

also likely has a necessity defense to this charge because there was a lesser evil avoided by her

actions.

In hiring an individual to kill Mike, Becky has placed herself in a poor position. Becky

could attempt to claim the justification of self defense on a battered women theory. She is

making a rational choice, like Kelley, to defend herself here as she is caught in a bad position

and cannot escape. Under Goetz, she is allowed to incorporate her knowledge of the defendant,

prior experiences, and physical characteristics into whether this action was reasonable. Here she

has been beaten severely before, she has been hospitalized recently from it, she is a smaller girl,

and was able to rationally judged that this time the beating was going to be much worse. Under a

mentally ill conception, she could claim that she was physically beaten, and did not realize any

other way to react. This defense will likely have several problems. Under Peterson and Norman,

the threat must be imminent, not inevitable. Here she was in no immediate danger, as he was

passed out on the floor and she was safe with her friend Nancy. She also may no longer had a

reasonable fear, in which case she would be guilty of negligent homicide under the MPC, or

guilty of murder under most statutes. Finally, she hired another individual to do a killing, which

11



has traditionally not been excused by the courts. If she was not in imminent danger, the crux of

the issue here, Osterville, who she hired, also has no justification. This could be seen as

accomplice murder because she has no longer any imminent threat, and this individual was not

justified as she is not justified in killing at this time. This would be satisfied under the Hicks

standard because she aided the killing, encouraged it by Wilcox, and destroyed a chance for his

existence under Talley, all because she gave Osterville the money to kill. She likely has the mens

rea for this because she told him to find someone who can get rid of him indicating an intent for

the crime to be committed under Hicks, and guilty under the stricter standards of Luparello, Roy,

and the MPC. Here she also satisfies the nexus prong since she has facilitated the action and has

a purpose of promoting and desires the offense. Under accomplice liability, there is no actual

murder unless the offense is actually committed, and here unless Mike died in his sleep, she is

not guilty, but under the MPC standard she could be guilty of accomplice liability even though

he did not actually die.

As Osterville did not actually kill Mike, she could be guilty of attempted murder. Under

the MPC test, she has taken a substantial step in ensuring his killing because she paid a drug lord

to deal with this. This could also not be seen as a substantial step, because like harper, this action

was very remote from actual killing still. Under a dangerous proximity test or the Eagleton test,

she has not satisfied the actus reus because the killing never comes near to happening. Her mens

rea is likely satisfied because the natural and probable consequences of paying someone to kill

someone else is that this will be followed through, she had specific intent as shown by the money

exchange

For this killing she could attempt to exploit an EED defense if her self defense claim is

unlikely. She has been sobbing in the chair and appears very emotionally distraught. She

12



therefore could state that under Cassassa and the MPC that she was acting under emotional

distress when she hired his killing, and that this action was objectively reasonable because of the

actions he had taken to put her in the hospital, tie her in a chair and threaten her with the bottle.

A court may go either way on the reasonableness of this activity, especially since it appears that

she had reached safety with Nancy.

She could be guilty of a conspiracy for murder since she made an explicit agreement,

proven by the exchange of cash. It could be determined that she did not have the mens rea for

this conspiracy because she had not made the agreement explicit, getting rid of does not

necessarily mean killing. She could claim that the killing was not a reasonable act in furtherance

of the crime, that it was not within the scope of agreement, or that it was not reasonably

foreseeable under Pinkerton, but since the killing never occurred she is likely not guilty for these

purposes.

Giving money to a drug lord could also be a conspiracy, and if she enters into a

conspiracy for drug trafficking, she could be guilty for all offenses of the group previously. This

is unlikely though because her intent entering the agreement could be questioned as she did not

know that there were other roles in this conspiracy besides herself and Ostresville (although this

could be disputed since she told him to find someone to deal with it) and she did not have

unanimous action towards an object like is necessary under interstate circuit.

Becky is could be guilty of criminal trespass for driving onto a private road, however the

statute requires a mens rea of purpose for committing a crime and knowingly entering the

property of another. Here she had poor visibility driving at night and in the fog, and snow.

Neither her nor Peter noticed when they left the main road. So they are likely not guilty under

this statute as they did not purposely enter, or knowingly enter. Rickover is likely guilty under

13



this statute because he has cut the lock to do some out of season (a felony) hunting. This

constitutes the purpose of committing a felony and he knew that this was a private area since he

cut the lock.

Becky could be guilty for the murder of Peter when he dies. This would be a depraved

heart murder if sufficient recklessness is determined, she knew there was a risk of him dying by

not going after him, satisfying the risk and objective requirements, however this does not seem

that likely as it is not grossly reckless enough to meet the common law or MPC standards.

Reckless murder seems more likely as there is a gross and unjustifiable risk of his death sending

someone out to for help in the cold and alone. Under Hall, some subjective knowledge of the

risk is needed, and it needs to have been an unjustifiable risk. Here she did likely know of the

risk, but it still does not seem terribly reckless. Under Welansky, she should have seen that this

could result in death and could be liable of manslaughter because she did not go after him.

If held to have the mens rea and actus reus for manslaughter, she must satisfy the

causation standards. There is but for cause, because the defendant would not have died as and

when he did without her actions. Proximate cause is much more difficult to satisfy because this

may have been a highly extraordinary event. Slipping on ice and falling down a ravine hitting his

head on the ice seems unforeseeable way of dying, but under the court in Acosta, Arzon and

Brady, this could be determine as foreseeable since it was winter and they were in the mountains.

Under the MPC definition she is likely not liable because this seems too remote to be just in

holding her liable. This could be determined to be a sufficient intervening cause if this is

interpreted as a human action, him slipping, or if it was a physical agency that caused the death,

the ice, this would not be a sufficient intervening cause. This could also be a sufficient

intervening cause since he decided himself, announcing that he was going to look for help, like

14



Campbell to take this action voluntarily. If this was a direct and natural result, Kevorkian, she

could be liable, but it was not because she did not directly cause this harm since he slipped.

Recklessly risking the result, she could be liable under McFadden, because his own recklessness

in searching for help does not absolve her of proximate cause since he placed her in this position.

Under the Root court, she would be able to get off since her placing him in a car in the

mountains was not a sufficiently direct cause of the harm. Under Atencio, if she encouraged this

action, him leaving the car by her actions of sleeping and appearing helpless, she could be liable

of manslaughter. Proximate cause does not seem likely though, as there is but for causation, but

she is not a status Garantor, like Warner Lambert, of these conditions and proximate cause seems

tenuous because she did not place him near the ravine or demand that he seek help.

If proximate cause is found, she may claim a defense of necessity. This defense is

available to murder, and faces a few issues. Necessity requires that this be the choice of a lesser

evil, here she was choosing her life other others , not necessarily excused in Dudley, but likely is

excused here since Peter made a voluntary choice to leave. She would have to satisfy that there

was imminent peril, but being stuck in the snow and cold without food could be construed as

inevitable, but maybe even imminent if the timeframe is extended as the threat is constant,

adopting a reading like PCAT for imminence, unlike the threat in Norman. There were no legal

means of avoiding this harm as she was immobile in the wild, there was no legal statute on point.

Some jurisdiction limit this to emergencies created by natural forces, which this is, and do not

apply it to homicides, which could be problematic if this is found as murder. The clean hands

provision for the common law requirements would be problematic, as she placed them in this

position by not seeing the road correctly, however, this was an innocent mistake since there was

snow at night and fog, and the fence was no longer roped off. She could claim that she was

15



risking herself, and this was self defense because there was imminent peril, that was honest and

reasonable to believe that if she went out she would die in the cold as well.

The necessity could also be claimed for here criminal trespass into the hunting lodge. She

is choosing a lesser evil, trespassing over freezing to death, and in helping herself to the lodge

and food and firewood is protecting from imminent harm (see the discussion immediately above

for the imminence requirement section). She has likely no legal way to avoid breaking in, there is

a legal statute on point, but it does not designate that this is a greater evil than death. The clean

hands was analyzed directly above. All limitations would be avoided, since this was a situation

created by cold and snow, there is no homicide, and this was limited to protection of person and

property, clear here. By the MPC she has a necessity excuse since this avoids the evils of

freezing to death and starving, since there are food and candles and firewood.

The fence lock being clipped could extend a felony murder charge to Rickover, but likely

fails under the modern conceptions since that is not an inherently dangerous felony under either

conception. Under the Coke standard he is likely guilty. Under a Welansky conception of

reckless homicide he could be guilty, but it is unlikely that this is a danger someone should be

aware of, this could be disputed however, as the road appeared to be part of the main road and

was on an isolated, mountain highway path.

16

crimlaw, fall 2010, final exam part 2, final (2)

Documents