FREE ESSAY ON ACCOMPLICE LIABILTY

ACCOMPLICE LIABILTY

Questions Presented
1. Whether a person in Alaska can be charged as an accomplice to an unintentional crime,
when Alaskan courts required that one must have the specific intent to promote or
facilitate the offense?
2. Whether the mother was the legal cause of her children's death, when she permitted the
father to take the children in his car when he was drunk?
Statement of the Case
The appellant, Elaine Benis, was indicted in the County of Norchester, on one count of
manslaughter, pursuant to A.S. ?11.41.120. (R. at 1.) She was also indicted for one count
of accessory to manslaughter, pursuant to A.S. ?11.41.120 and A.S. ?11.16.110. (R. at 1).
After the presentation of the prosecution's case, the defense moved to dismiss on the
grounds that the prosecution did not prove beyond a reasonable doubt that Mrs. Benis was
reckless. (R. at 9). This motion was denied. At the conclusion of its case, the defense
moved for a directed verdict, stating that the prosecution failed to show that Mrs. Benis
recklessly caused the death of her children. (R. at 12). This motion was denied and the
judge informed the counselors that he would charge the jury in accordance with the
state's proposed charge. (R. at 13). The defense strongly objected and renewed its motion
for a directed verdict, submitting that there was insufficient evidence to prove that
Mrs. Benis was the cause of her children's death, since Mr. Peterman's actions clearly
were the only cause of their death and that it is logically impossible for any jury to
find someone guilty as an accomplice to an unintended crime. (R. at 13). The trial judge
denied the motion. (R. at 13).
Mrs. Benis was convicted and appealed to the Court of Appeals of the State of Alaska. (R.
at 15). At issue in the appeal was whether the trial court erred, as a matter of law, (1)
in instructing the jury on the charge of accessory to manslaughter and (2) in denying
Mrs. Benis's post trial motion for a directed verdict because there was insufficient
evidence to support a conviction as a principal. (R. at 16). 
The Court of Appeals held that the trial court did not err in instructing the jury that
one can be an accomplice to reckless manslaughter even though it is a not a specific
intent crime. (R. at 17). The court based its decision on holdings from other
jurisdictions and rejected the Alaskan doctrine that one cannot be an accomplice to a
crime when he acts recklessly. (R. at 17). Furthermore, the court held that there was
sufficient evidence to support a conviction of Mrs. Benis as principal because her act
was the legal cause of death. (R. at 17).
Mrs. Benis now appeals to the Supreme Court of Alaska. This appeal is limited to the
issue of whether being an accessory to manslaughter is a crime under Alaska law and
whether there was sufficient evidence that Mrs. Benis's act caused the death of her two
daughters. (R. at 19). The defense appeals on the grounds that the law of Alaska does not
permit an instruction that one can be an accomplice to an unintentional crime when they
did not have the specific intent to promote or facilitate the offense and that Mrs.
Benis's act was not the proximate cause of her two children's death.
On Sunday, October 10, 1999, Jay Peterman came to his wife's house, Mrs. Benis, because
he is allowed to see his children, pursuant to a temporary separation agreement. (R. at
16). Mrs. Benis testified that her husband's eyes were red and that he appeared tipsy,
"…but he drove up to the house, so I thought he was O.K." (R. at 11). However, when
the prosecution asked Mrs. Benis if she knew that Mr. Peterman was drunk at the time he
picked up the girls, she emphatically replied "No". (R. at 12). Furthermore, expert
testimony from the Medical Examiner reveals that even though someone has a blood alcohol
level of 0.14, it is not absolutely certain that the person appears intoxicated to the
outside world. (R. at 7). 
Mr. Peterman had a breath-analyzing device installed in his car because of past drunk
driving incidents. (R. at 16). This device is designed to keep a drunken driver from
starting a car. The system requires a driver to breathe into a device and register a
clean breath before the ignition unlocks. The driver is also subject to rolling retests
during the trip to make sure the driver is alcohol free. If alcohol is registered, the
vehicle's horn honks nonstop until the vehicle is stopped. (R. at 16). Testimony from
Maggie O'Connell indicates that Mr. Peterman had his daughter Sarah blow into the tube
for him before the car drove off. (R. at 2). Mrs. Benis testified that she did not see
the car drive away. (R. at 11). That was the last time she saw her children alive. At
about 2:00 p.m. on that Sunday, Peterman drove his car into oncoming traffic, killing
himself and both of Mrs. Benis's daughters. (R. at 16).
Analysis
I. ALASKA LAW REGARDING ACCOMPLICE LIABILITY IS CLEAR AND ONLY ALLOWS FOR ONE
INTERPRETATION: ONE MUST SPECIFICALLY INTEND TO PROMOTE OR FACILITATE THE COMMISSION OF
THE OFFENSE.
When this court is reviewing a matter of law it adopts a rule that is most persuasive in
light of precedent, reason, and policy. See American Computer Institute v. State, Nos.
S-8664, S-8694, 5235, 2000 WL 146847 (Alaska 2000). This court's interpretation of
accomplice liability has been able to stand the test of time because its decisions have
been based on common law, case precedent and statutory interpretation. The early
definition of accomplice liability required one to have knowledge and specific intent to
aid, abet or participate in a criminal act. This court was able to establish a mens rea
requirement for an accomplice because the criminal law was codified frm common law. For
17 years this court held that one has to have knowledge and specific intent in order to
be an accomplice to a crime.
After the legislature revised the criminal code in Alaska the strong presumption from
statutory interpretation, legislative history and case law is that they wanted to codify
prior case law and common law. Also, the legislature had no intention of adopting the
Model Penal Code's approach to accomplice liability. It is the legislature's power not
the judiciary's to change law. 
The society in Alaska would be the one most devastated if the Appeals Court's decision is
upheld. Every man and woman would have to walk a so-called straight line. In the long-run
everyday behavior would be criminalized. 
A. This court has consistently held that one has to have the knowledge and the specific
intent to be convicted as an accomplice to a crime. 
This court's interpretation of accomplice liability has been able to stand the test of
time because its decisions have been based on common law, case precedent and statutory
interpretation. In Mahle v. State, 371 P.2d 21 (Alaska 1962), this court had its first
chance to define who was an accomplice, its general definition was that an accomplice is
"…one who in some manner, knowingly and with criminal intent aids, abets, assists
or participates in a criminal act." Id. at 25. See Daniels v. State, 383 P.2d 323, 324
(Alaska 1963), Taylor v. State, 391 P.2d 950 (Alaska 1964), Fajerak v. State, 439 P.2d
783, 788 (Alaska 1968), Flores v. State, 443 P.2d 73, 78 (Alaska 1968), Beavers v. State,
492 P.2d 88, 97 (Alaska 1971). This court in Daniels explained, "Neither the knowledge
that a crime is being committed nor the concealment of that knowledge makes a person an
accomplice, unless he aided or participated in the offense or conspired to commit it."
Id. at 383 P.2d 323, 325 accord Mahle, 371 P.2d 21, 25, Fajerak, 439 P.2d 783, 788.
Furthermore, in Mahle this court stated, an accomplice has to voluntarily participate in
the completion of the crime. Id. at 371 P.2d 21, 25. As exemplified in Daniels, three men
had used a woman's car to commit a burglary; the woman never consented to this use or
even had knowledge thereof. Id at 383 P.2d 323, 325. The three men after committing the
crime went to her house and dumped the money on the bed, she assisted them in counting
the money and kept some for herself. Id. at 325. This court stated even if she knew that
the three men were going to commit the crime she did not participate in the crime. Id. at
325. The woman had to do more than just know that a crime was being committed, there had
to be a voluntary participation on her part otherwise she could not be held liable as an
accomplice. 
The problem with the preceding cases is that at the time they were decided the statute
that pertained to accomplice liability was silent as to a mens rea requirement. A.S.
12.15.010 (repealed by Ch. 166, s 21, SLA 1978, effective January 1, 1980). "All persons
concerned in the commission of the crime, whether they directly commit the act
constituting the crime or, though not present, aid and abet in its commission, shall be
prosecuted, tried and punished as principals." Id. This court failed to explain why they
were able to read a mens rea requirement into A.S. ?12.15.010, when the statute did not
specifically state one. 
The Alaskan criminal code due to its codification of common-law, allowed this court to
interpret that an accomplice has to have the specific intent to aid, abet or participate
in a criminal act. In Tarnef v. Alaska, 512 P.2d 923 (Alaska 1973), this court had to
decide whether the arson statute which contained the words aids, procures or counsels,
was unconstitutional because there was no mens rea requirement. This court concluded that
these words meant aid and abet, as in A.S. ?12.15.010, which was defined as "…help,
assist, or facilitate the commission of a crime, promote the accomplishment thereof, help
in advancing or bring it about, or encourage, counsel, or incite as to its commission.
Thomas v. State, 391 P.2d 18, 25 (Alaska 1964) quoted in 512 P.2d 923,928. Since that
portion of the arson statute pertains to accomplice behavior, lacks a mens rea
requirement and the punishment is the same for the principal and the accomplice, as a
felony it is a basic premise that if the statute lacks a mens rea requirement the statute
is unconstitutional. Id. at 512 P.2d 923, 929. Given at the time Alaska followed common
law:
it is true that one will sometimes find felony statutes that are silent on 
the subject of criminal intent. But these are instances where the states 
have codified the common law of crimes, and their courts have assumed 
that the omission of the requirement of criminal intent did not signify 
disapproval of the principle but merely recognized that intent was so inherent 
in the idea of the offense that it needed no statutory affirmation. Thus, as to 
felony type offenses codified from common law, the courts have found an implication of
intent. 
Spiedel v. State, 460 P.2d 77, 79 (Alaska 1969) quoted in 512 P.2d 923, 929. Because of
this implication this court held, "it is well established under common law and in Alaska
that a person cannot be convicted of aiding and abetting a crime unless he had the
specific criminal intent to bring about the illegal end." Id. at 928. This decision
changed the language that Mahle used to define accomplice liability but still held that
one has to have the specific criminal intent to bring about the illegal end. However,
this decision did not clarify what exactly the nature of intent was but it does
illustrate why this court had the power to interpret a mens rea requirement for an
accomplice. 
In Hensel v State, 604 P.2d 222, (Alaska 1979), the last time this issue was brought to
this court, it precisely stated what was the nature of the mens rea requirement of an
accomplice. The court held that "…liability for the crime of another will attach
only upon a showing that an individual had knowledge of the criminal enterprise and
specifically intended, by his conduct to aid, abet, assist or participate in the criminal
enterprise." Id at 234. The two-prong test is that liability will not attach upon
knowledge alone, the individual must also have had "the specific criminal intent to bring
about the illegal end. Id. at 234. The intent therefore is "…conduct voluntarily
undertaken for the purpose of participating or assisting in the completion of the crime."
Evans v. State, 550 P.2d 830, 841 (Alaska 1976). 
From 1962 to 1979, this court had ample opportunity to interpret what the culpable mental
state for an accomplice should be in Alaska. Although the language changed throughout the
years this court has firmly held that one has to have knowledge and specific intent in
order to be liable as an accomplice. Nowhere in any of the opinions from 1962 to 1979
even imply that one can be an accomplice if their culpable mental state is any less than
knowledge and specific intent.
B. Plain reading, legislative history and case law of the accomplice liability statute in
Alaska illustrate that one has to have the required specific intent to promote or
facilitate the commission of the offense.
In 1978 the legislature revised the criminal code and from present appeals court
decisions and statutory interpretation it is evident that the legislature wanted to
codify prior case law and the common law definition for who can be an accomplice. When
interpreting a statute the Supreme Court of Alaska "does not adhere to the plain meaning
rule of statutory interpretation, but rather, relies on a sliding scale approach even if
a statute is plainly worded; since words are necessarily inexact and ambiguity is a
relative concept, Supreme Court turns to legislative history, mindful that the plainer
the language, the more convincing contrary legislative history must be." Romann v. State,
991 P.2d 186 (Alaska 1999). 
The plain reading of A.S. ?11.16.110(2)(B) on its face does not seem to be ambiguous one
cannot be an accomplice to a crime if their culpable mental state is reckless. The
statute in question states, "a person is legally accountable for the conduct of another
constituting an offense if, with intent to promote or facilitate the commission of the
offense, the person, aids or abets the other in planning or committing the offense."
(emphasis added) A.S. ?11.16.110(2)(B). Under Alaskan law a person acts with intent "with
respect to the result described by a provision of law defining an offense when the
person's conscious objective is to cause the result." A.S. 11.81.900(a)(1). A plain
reading of the statute would be that one has to have the conscious objective to promote
or facilitate the offense. Furthermore, according to the Oxford Dictionary and Thesaurus
298 (American Edition 1996), conscious is defined as aware and aware is defined as having
knowledge. The definition of objective is something sought or aimed at. Id. at 1026. A
reading of A.S. ?11.16.110 with these definitions would be that one having knowledge has
sought or aimed to promote or facilitate the offense. This plain reading of the statute
is consistent with the interpretations of the Supreme Court of Alaska. 
In Echols v. State, 818 P.2D 691 (Alaska Ct. App. 1991), the court interpreted A.S.
?11.16.110(2(B) in light of a plain reading and legislative intent. The defendant
appealed the trial court's instruction to the jury that it could convict her if she acted
recklessly regarding the results of the principal's conduct under A.S. ?11.16.110. Id. at
695. The court held that the trial court did err because it was clear from the plain
language of A.S. ?11.16.110 and the legislative history of that statute, that in order to
convict her as an accomplice, the state must prove that she intended to promote or
facilitate the commission of the offense. Id. at 695. The court first stated that the
plain language of the statute "…seems to indicate that the accomplice must intend
the commission of the particular crime charged." Id. at 692, See Ashenfelter v. State,
988 P.2d 120, 125 (Alaska Ct. App. 1999, Erickson v. State, 824 P.2d. 725, 730 (Alaska
Ct. App. 1991). A defendant's complicity is not established unless the state proves that
the defendant acted with intent to bring about the specified result. There is no such
thing as reckless accomplice behavior. 
Furthermore, the court relied on the legislative history of A.S. ?11.16.110 in order to
determine the legislative intent behind this statute. There is no concrete history for
the present code but the court relied on commentary from the tentative draft of the
Alaska Criminal Code revision. The commentary states, "Subsection (2) codifies the
current case law that one is liable as a traditional 'accomplice' if he acts 'with intent
to promote or facilitate the commission of the offense'." Alaska Criminal Code Revision
Part II, at 31 (Tent. Draft 1977) (citations omitted) quoted in 818 P.2d 691, 692. This
comment is persuasive because prior to the revision every time the Supreme Court of
Alaska defined the mens rea requirement for an accomplice it stated that one has to have
the specific intent to promote or facilitate the offense. See, Mahle v. State, 371 P.2d
21, 25 (Alaska 1962), Daniels v. State, 383 P.2d 323, 324 (Alaska 1963), Taylor v. State,
391 P.2d 950 (Alaska 1964), Fajerak v. State, 439 P.2d 783, 788 (Alaska 1968), Flores v.
State, 443 P.2d 73, 78 (Alaska 1968), Beavers v. State, 492 P.2d 88, 97 (Alaska 1971). 
The legislature never intended to adopt MODEL PENAL CODE ?2.06(4) (1962) (MPC). The
legislature when it revised the criminal code of Alaska in 1978 did adopt certain MPC
provisions. Section 2.06(4) allows for one to be an accomplice "…if he acts with
the kind of culpability, if any, with respect to that result that is sufficient for the
commission of the offense.". Under this provision one can be an accomplice if he just
acts recklessly. Since A.S. ?11.16.110 does not contain this provision this court cannot
hold this to be the law of the State. If the legislature saw fit to adopt this clause
they would have as they did for A.S. ?11.16.110(3). What the legislature did do was
codify the law that this court had interpreted and consistently held for 17 years. When
the legislature codified the law they made sure that there was a mens rea requirement
included in the statute, which was missing prior to the revision. This court does not
have the power to make law it only has the power to interpret the statute according to
the sliding scale approach. t 
In accordance with the sliding scale approach there is no other interpretation for A.S.
?11.16.110: one has to have the specific intent to promote or facilitate the offense.
Furthermore, a statute will not be modified or extended by court where a statute's
language is clear and legislative history reveals no ambiguity. See Lewis v. State, 892
P.2d 175 (Alaska 1995). From a plain reading, legislative history and case law it is
obvious that under A.S. ?11.16.110, there is no such thing as reckless accomplice
behavior. 
C. If one is held to be an accomplice to an unintentional crime when they did not have
the specific intent to promote or facilitate the offense it will lead to bad public
policy.
If the Appeals Court's decision is upheld it will set bad public policy. In the Appeals
Court's decision the court stated, "it is our hope, however, that this case will make the
people realize the seriousness of driving while intoxicated." (R. at 17). In what way,
does this deter people from driving while intoxicated? This decision has no affect on the
person who is driving the car. This decision extends Alaskan law to every man and woman
of this state no matter if they drink or not. This court should note the interest of
society in deterring criminals must be balanced against the interest of the individual
being free unless found legally responsible. A basic premise in criminal law is that one
should be liable only for one's personal guilt. It makes no sense to uphold a rule that
could convict an accomplice for intentionally aiding in a crime that a principal was
unaware that he was committing. What this may do is "…burden peoples' actions with
doubts and worries about what someone might culpably do as a consequence of their own
lawful actions." Sanford H. Kadish, Reckless Complicity, 87 J. Crim. L. & Criminology 369
(1997). The accomplice liability statute is not only aimed at people who drive while
intoxicated, it is a statute that applies to all crimes in Alaska. This court must adopt
a rule that is most persuasive in light of precedent, reason, and policy. See American
Computer Institute v. State, Nos. S-8664, S-8694, 5235, 2000 WL 146847 (Alaska 2000).
Otherwise, the law would criminalize everyday behavior. 
II. THE MOTHER WAS NOT THE LEGAL CAUSE OF HER CHILDREN'S DEATH, WHEN SHE PERMITTED THE
FATHER TO TAKE THE CHILDREN IN HIS CAR WHEN HE WAS DRUNK. 
The Court of Appeals erred when it held that there was sufficient evidence of causation
to support the conviction of Mrs. Benis as a principal to manslaughter, pursuant to A.S.
?11.41.120. This court reviews a trial court's evidentiary rulings for abuse of
discretion. See Smithart v. State, 988 P.2d 583, 586 (Alaska 1999). In American Computer
Institute v. State, Nos. S-8664, S-8694, 5235, 2000 WL 146847 (Alaska 2000), this court
stated, "to reverse, the court must have a definite and firm conviction that a mistake
has been made." Id. at 2. 
The general rule in Alaska is that in every criminal case the prosecution must establish
and the jury must find that the defendant's conduct was the actual cause and the
proximate cause of the crime charged in the indictment. The defense does not contest that
Mrs. Benis's failure to act was the actual cause of her children's death. The defense
does contest whether there was sufficient evidence to find that Mrs. Benis was the
proximate cause of her children's death. In Wren v. State, 577 P.2d 235 (Alaska 1978),
this court affirmed an instruction on proximate cause which stated, "[t]he proximate
cause is that cause which, in natural and continuous sequence, unbroken by an efficient
intervening cause, produces the result which the result would not have occurred." Id. at
240. The defense believes that it has presented enough evidence to show that there was an
intervening cause that broke the natural and continuous sequence. If this court finds
that this is true than Mrs. Benis's failure to act, as a matter of law, was not the
proximate cause and her conviction should be reversed.
The death of Mrs. Benis's children was not foreseeable when she let her children get into
the car with her husband. The test in Alaska is not that a person has to be the sole
factor in producing the death, but the defendant's conduct has to be a substantial factor
in bringing about death. See Brown v. State, Nos. A-6439, 3815, 1998 WL 224920, at 1, 2
(Alaska Ct. App. 1998). However, a defendant's criminal responsibility is not limitless.
In State v. Malone, 819 P.2d 34 (Alaska Ct. App. 1991), the court stated, 
The law does not hold a defendant responsible if the injury or death,
while perhaps linked to the defendant's conduct, is primarily caused 
by abnormal, unforeseeable conduct on the part of the victim or of a 
third person, so that it no longer seems fair to say that the injury was 
'caused' by the defendant's conduct. 
Id. at 37. The law acknowledges that in some circumstances there are "situations in which
the second act of negligence looms so large in comparison with the first that the first
is not to be regarded as a substantial factor in the final result." R. Perkins & R.
Boyce, Criminal Law (3rd ed. 1982), ? 9, p. 787, quoted in 819 P.2d. 34, 37. 
In Malone, the defendant led police on a high-speed chase through public streets. While
the police were in pursuit of the defendant, the police car collided with a vehicle
driven by another motorist; both the officer and the motorist were injured. Id. at 35. On
appeal, the defendant claimed that the collision could have been due to the police
officers or the other motorist's negligent conduct. Id. at 35. The defendant did not
point to any evidence of the police officer's or other motorist's negligence. Id. at 35.
The court stated that even though all drivers are required to exercise care for the
safety of other motorists, a situation such as a high-speed chase alleviates the
strictness of that care. It is natural and foreseeable that, under the stress of the
situation, police officers may engage in driving that fails to satisfy the standard of
care and uninvolved motorists may either fail to react or may react with less than normal
prudence. Id. at 38. The court held that even if it is believed that the police officer's
or the other motorist's conduct was negligent, this negligence was a foreseeable result
of the defendant's conduct. Id. at 38. Furthermore, there was no evidence in the record
to illustrate that the police officer or the other motorist caused the collision by
engaging in extraordinary, unforeseeable conduct. Id. at 38.
In contrast to Malone, there is evidence in this case purporting to extraordinary,
unforeseeable conduct by a third party. On October 10, 1999, Mr. Peterman came to Mrs.
Benis's house to pick up the children. Mrs. Benis testified that she did not know that
her husband was intoxicated when he picked up the children. (R. at 12). Evidence in
support of this statement is that due to prior drunk driving incidents Mr. Peterman had a
breath-analyzing device installed in his car. (R. at 16). This device is designed to keep
a drunken driver from starting a car. (R. at 16). The system requires a driver to breathe
into a device and register a clean breath before the ignition unlocks. (R. at 16). The
driver is also subject to rolling retests during the trip to make sure the driver is
alcohol free. (R. at 16). If alcohol is registered, the vehicle's horn honks nonstop
until the vehicle is stopped. (R. at 16). Mrs. Benis would be able to assume that since
Mr. Peterman was able to drive his car to her house, he must have passed the
breath-analyzing test in his car. The defense is not contesting whether Mrs. Benis knew
if her husband was drunk. In any event, Mrs. Benis knows that a natural and foreseeable
consequence of letting her children drive with someone who is intoxicated can be death.
However, in this situation testimony from Maggie O'Connell indicates that Mr. Peterman
had his daughter Sarah blow into the tube for him before the car drove off. (R. at 2). 
The difference between Malone and this case are results or reactions that are natural and
foreseeable from the defendant's conduct and results or reactions that are not. In
Malone, the court held that the police officer and other motorist's conduct was a normal
reaction to the high-speed chase that the defendant's conduct initiated. The defendant
also did not offer evidence to show that the third party's negligence was extraordinary,
unforeseeable conduct. Similarly to Malone, Mrs. Benis could foresee her husband getting
into an accident if he drove while intoxicated and it is a foreseeable result that her
children could die if she let them go in the car with him while he was drunk. However, in
this case it is extraordinary and unforeseeable that a father would have his ten-year old
daughter, Sarah, break the law, by blowing into the breath-analyzing device so that he
could illegally drive his car intoxicated. Unlike in Malone, where the third party's
conduct was a normal reaction and foreseeable result from the high-speed chase, a father
having his kid break the law is neither normal or foreseeable from a mother failing to
stop her children from getting in the car with their father. The distinction is that the
defendant in Malone would still be convicted if no one had gotten injured and nothing
could have been done to Mrs. Benis. Therefore, in accordance with Malone this court must
hold that the defense presented enough evidence to show that when Mr. Peterman had his
daughter commit a criminal act by blowing into the tube, it was not a natural and
foreseeable reaction to Mrs. Benis's failure to act.
The defense has presented sufficient evidence to illustrate that the extraordinary,
unforeseeable conduct of Mr. Peterman having his daughter commit a criminal act is, as a
matter of law, a superseding or intervening cause that excuses Mrs. Benis from liability.
In Kusmider v. State, 688 P.2d 957 (Alaska Ct. App. 1984), the defendant went to the
house of his girlfriend's acquaintance, an altercation arose and the defendant shot the
acquaintance. Id. at 958. After the paramedics had inserted a tube into the
acquaintance's throat on the ambulance, the acquaintance started to flail his arms and
pulled the tube from his throat. He died at the hospital. Id. at 958. The defendant
claimed that the jury should have been allowed to consider whether the paramedics failure
to restrain the acquaintance's arms constituted an intervening or superseding cause of
death. Id. at 958. The only evidence the defendant offered was that the paramedics who
treated the acquaintance might have been negligent in failing to restrain the
acquaintance's arms. Id. at 959. The defendant did not argue that he could have presented
evidence that the paramedic's behavior inflicted any new injuries on the acquaintenance;
he relied on their failure to act. Id. at 960. Since the defendant never offered proof
that the paramedics failure to act was grossly negligent or that the results were
unforeseeable because they inflicted new injuries, the evidence was insufficient to
illustrate that their conduct was an intervening cause. Id. at 959-60. It was evident
that the gunshot fired by the defendant remained a substantial factor in causing the
acquaintenance's death. Id. at 960. 
On the contrary, in this case the defense has presented evidence to illustrate that after
the husband had the daughter blow in to the tube, Mrs. Benis did not remain a substantial
factor in causing her children's death. Comparing Kusmider and Mrs. Benis we see
similarities and differences. Mrs. Benis failing to stop her kids from getting in the car
with her husband while he was drunk is similar to the defendant in Kusmider firing a shot
at the acquaintance. In both cases, Mrs. Benis knew that death could result from her
action and so did the defendant in Kusmider. The difference is in the conduct of the
third party. In Kusmider the paramedics failed to restrain the acquaintenance's arms but
there was no evidence to illustrate that this failure aggravated the injuries caused by
the gunshot. In this case after Mrs. Benis acted, testimony indicates that the father
affirmatively had the daughter blow into the tube so that he could operate the
automobile. (R. at 2). The legal significance is even if the paramedics restrained the
acquaintenance's arms the defendant's gunshot would still have been a substantial factor
in causing the death. However, in this case if the father were the one who blew into the
tube he wouldn't have been able to drive the car. In this case the evidence illustrates
that once Mr. Peterman had his daughter blow into the tube Mrs. Benis was no longer the
substantial factor. If the husband had blown into the tube the car wouldn't have started
and there would have been no accident. Therefore, under Kusmider the court would find
that the evidence was sufficient to show grossly negligent and unforeseeable conduct that
constitutes an intervening cause and interrupts the chain of proximate causation. 
In conclusion, this court must reverse the lower court's decision because the defense
presented sufficient evidence to illustrate that Mrs. Benis was not the proximate cause
of her children's death. Once Mr. Peterman had his daughter blow into the tube, it was
extraordinary, unforeseeable conduct that did not occur as a normal reaction nor was it
foreseeable from Mrs. Benis's conduct. The courts in Malone and Kusmider, as a matter of
law, would hold that the conduct of Mr. Peterman constituted a superseding or intervening
cause that interrupted the chain of proximate cause.
Conclusion
Case precedent, legislative history, statutory interpretation and public policy all
support a finding that the Supreme Court of Alaska should uphold the law of the land: one
has to have the specific intent to promote or facilitate the offense. Furthermore, the
defense has presented sufficient evidence to illustrate that Mrs. Benis was not the legal
cause of her children's death. 
Respectfully Submitted
Attorney for the Appellant
April 3, 2000