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Firey v. State7/14/2002
with criminal conduct - either a voluntary act that contributed to the toddler's peril, or a voluntary failure to act if the passerby was under a legal duty to protect the child.
By using "recklessness" to refer to the defendant's culpable mental state, we introduce a certain ambiguity - because, in everyday speech, we also use the word "recklessness" to refer to conduct. For instance, we might say that a traffic accident or an injury was "caused" by a person's recklessness. What we mean is that the result was caused, not by the person's mental state, but rather by the person's careless behavior - behavior that departed from what we would expect of a reasonable person in the same circumstances.
Indeed, this court has recognized that when a crime is defined in terms of negligently or recklessly causing a result, the crime implicitly requires proof of unreasonable conduct as well as the accompanying culpable mental state:
Under the statutory definitions [contained in AS 11.81.900(a)(3)-(4)], recklessness and criminal negligence both require conduct that, with respect to a specified result or circumstance, creates "a substantial and unjustifiable risk that the result will occur or that the circumstance exists ... ." Panther v. State, 780 P.2d 386, 389 (Alaska App. 1989).
Thus, for instance, when a defendant is charged with first-degree assault under AS 11.41.200(a)(1) - "recklessly causing serious physical injury to another by means of a dangerous instrument" - the State must prove that (1) the defendant engaged in conduct that created a substantial and unjustifiable risk of serious physical injury to another, (2) the defendant acted recklessly with respect to this risk (i.e., either consciously disregarded the risk or failed to perceive it because of intoxication), (3) someone suffered serious physical injury, and (4) the defendant's conduct was a substantial factor in causing that injury.
In Firey's case, the State alleged that Firey committed first-degree assault by driving a motor vehicle while his ability to drive was impaired and, through this act, causing serious physical injury to another person. The State further alleged that Firey either was aware or would have been aware, but for his intoxication, that his conduct posed a substantial and unjustifiable risk of injury to other people (the mens rea).
Firey contends that the trial judge failed to adequately instruct the jury as to how these components of the State's proof had to fit together. He argues that the jury might have convicted him under the false impression that he was guilty of assault if the State proved (1) that he drove while he was intoxicated and (2) that he got into an accident in which someone was injured.
Firey is correct that this would not be sufficient to establish his guilt of assault. Firey's decision to drive while intoxicated did not automatically make him criminally responsible for any and all ensuing injuries. For example, if Firey (despite his intoxication) was driving normally through an intersection and another driver ran a red light and rammed his car, Firey would not be criminally responsible for the other driver's injuries.
To properly analyze this point, we must focus on Firey's actus reus - his alleged unlawful conduct. As alleged by the State, Firey's unlawful conduct was not simply his act of driving a motor vehicle, but rather his act of driving a motor vehicle when his ability to drive was impaired - conduct that created a substantial and unjustifiable risk that someone else might be seriously injured. The State had to prove that Firey engaged in this conduct and that this conduct was a substantial factor in causing t
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