§702-222 Liability for conduct of another; complicity. A person is an accomplice of another person in the commission of an offense if:

(1) With the intention of promoting or facilitating the commission of the offense, the person:

(a) Solicits the other person to commit it;

(b) Aids or agrees or attempts to aid the other person in planning or committing it; or

(c) Having a legal duty to prevent the commission of the offense, fails to make reasonable effort so to do; or

(2) The person's conduct is expressly declared by law to establish the person's complicity. [L 1972, c 9, pt of §1; gen ch 1993]

Revision Note

In paragraph (1)(a), "or" deleted pursuant to §23G-15.

COMMENTARY ON §702-222

This section sets forth the types and extent of complicity in the penal conduct of another. In subsection (1) the Code sets forth the state of mind that is required--"intention of promoting or facilitating the commission of the offense"--and the nature of action or omission on the part of the defendant which is sufficient to establish complicity in and liability for the conduct of another. The Code avoids the vague concept of conspiracy in basing penal liability on the conduct of another, and focuses instead on the conduct of the accused which is sufficient to establish the accused's complicity.

The Code includes solicitation, aid, agreement and attempt to aid, and the failure to make a proper effort to exercise a legal duty to prevent commission of the offense. Since the intent to promote or facilitate the commission of the offense is present, there is no risk of innocence. Given the intent specified, the inclusion of attempts to aid seems entirely proper. Acquittal should not be had upon a showing of ineffective aid. "Where complicity is based upon agreement or encouragement, one does not ask for evidence that they were actually operative psychologically on the person who committed the offense; there ought to be no difference in the case of aid."[1]

It should be pointed out that approval of the conduct of another is not to be implied from the phrase "with intention of promoting or facilitating the commission of the offense." For example, a landlord who leases premises with intent to facilitate another's establishing an illegal gambling casino or narcotics den would be liable regardless of the landlord's personal predilections.

Subsection (2) preserves the concept that special legislation may declare specific conduct of the accused sufficient to establish the accused's complicity in the conduct of another. Such legislation is an analogue to that declaring particular acts of assistance independent offenses. Thus, for example, being a member of a mob may suffice to establish complicity in a riot or looting or lynching.

Previous Hawaii law on complicity was more simplified and "modern" than that found in most states which have not undertaken a recent revision of their penal laws, and to a substantial degree was similar in effect to the Code provision. However, the prior statute did draw distinctions based on (1) presence at the offense (which has been liberally interpreted), and (2) participation (as opposed to aid, command, or encouragement).[2] These verbal distinctions, however, were apparently without legal consequence; under the prior statute every person who aids in the commission of a crime or who "abets..., procures, counsels, incites, commands or hires another to commit the same"[3] "is guilty of such offense."[4] Although the statutory law did not resort to the term "conspiracy" to establish complicity, the court has.5 This should be avoided because in some instances, where the chain of conspirators has become attenuated, imposition of liability, on the basis of complicity, for acts of remote conspirators might be of questionable wisdom.

Subsections (1)(a) and (1)(b) rationalize the prior law, delete archaic phrases, and achieve greater clarity. Subsection (1)(c), which establishes complicity for failure to exercise a legal duty to prevent the offense, is an addition to the law.

Case Notes

Evidence held sufficient to prove defendant was an accomplice in the commission of burglary. 58 H. 404, 570 P.2d 844 (1977).

Instruction on law of principals and accomplices was not erroneous. 59 H. 625, 586 P.2d 250 (1978).

Statute provides for liability where an accomplice simply aids the perpetrator in committing an offense. 61 H. 475, 605 P.2d 75 (1980).

Accomplice jury instruction did not contain mens rea element. 72 H. 278, 815 P.2d 428 (1991).

Where defendant argued that the evidence was insufficient to prove defendant was an accomplice to an assault in any degree, and evidence was adduced that defendant pushed a person who was involved in a motor vehicle accident, causing the person to fall to the ground, and defendant held the person on the ground before the driver of a car involved in the accident jumped onto the person, substantial evidence supported the jury's conclusion. 132 H. 97, 319 P.3d 1105 (2014).

Plain language of section imposes no requirement that a joint legal duty exist before accomplice liability is imposed. 10 H. App. 73, 861 P.2d 37 (1993).

Cited: 9 H. App. 551, 851 P.2d 926 (1993); 78 H. 488 (App.), 896 P.2d 944 (1995).

Discussed: 133 H. 66, 324 P.3d 876 (2014).

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§702-222 Commentary:

1. M.P.C., Tentative Draft No. 1, comments at 27 (1953).

2. H.R.S. §§704-1, 704-3.

3. Id. §704-3.

4. Id. §704-4.

5. State v. Yoshino, 45 Haw. 640, 372 P.2d 208 (1962); State v. Yoshida, 45 Haw. 50, 361 P.2d 1032 (1961).