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Criminal Law
University of Kansas School of Law
Stacy, Thomas G.

1. Felony vs. Misdemeanor.
a. Common law. Under the common law, the felonies consisted only of murder, manslaughter, rape, sodomy, mayhem, robbery, larceny, arson, and burglary. Other crimes were misdemeanors.
b. Modern law. Most states now define a felony to include any crime punishable by imprisonment of one year or more.
i. Kansas law. The statute defining the crime generally specifies whether the crime is a misdemeanor or a felony. K.S.A. 21‑3105(1), which applies when the statute defining the crime does not so specify, defines a felony as “a crime punishable by death or by imprisonment.” 
2. Significance of distinction.
a. Applicability of felony murder rule. The felony murder rule cannot apply with respect to misdemeanors.
b. Required culpability.
i. Strict liability. Courts are unlikely to hold that a felony is a strict liability offense (i.e., a “public welfare” offense) that requires no culpability at all.
ii. Subjective culpability. The statutory language defining many offenses does not unambiguously specify the culpability required respecting each element. Courts are more likely to hold that a felony requires subjective culpability (i.e., intent or recklessness as opposed to negligence) respecting one or more elements.
1. Merger. 
When one offense merges with another, D cannot be convicted of and sentenced upon both. The general modern rule is that there is no merger of offenses: D may be charged with, convicted of, and sentenced upon multiple offenses.
a. Exception: Merger of attempt and solicitation with a completed crime.
i. No merger between conspiracy and the offense that is the conspiracy’s object. For example, if D conspired to commit murder, D may be charged with, convicted of, and sentenced upon the offenses of both murder and conspiracy to commit murder.
b. Exception: Felony Murder Rule. Some felonies that result in a killing (e.g., the felony of voluntary manslaughter) merge with the killing so that D may be convicted of the felony but not felony murder based upon that felony. See supra III. A.3.a. ii.
c. Limited merger of greater and lesser‑included offenses. D may be charged with both a greater and a lesser‑included offense. But he may not be convicted of and sentenced upon both a greater and lesser‑included offense.
i. Definition. A lesser‑included offense typically has some but not all of the elements of the greater offense and has no elements beyond those of the greater offense. See K.S.A. 21‑3107(2).
Example: Arson (the lesser) has some but not all of the elements of aggravated arson (the greater). Unlike aggravated arson, it does not require that a human being was present in the building when burned. Additionally, arson has no elements that aggravated arson does not also share.
ii. Kansas Felony Murder Exception. Felony murder requires proof that D committed that felony and that a killing resulted. The felony that is the predicate for felony murder thus fits the definition of a lesser included offense of felony murder. Nonetheless, Kansas cases hold that D may be charged with, convicted of, and sentenced upon both the predicate felony and felony murder in the same proceeding. The lesser included offense doctrine is matter of legislative intent and, according to State v. Sutton, 256 Kan. 913 (1995), the Kansas legislature intends for the predicate felony and any resultant felony murder to be punished separately.
iii. Prosecution and conviction of a lesser included offense in a prior proceeding. K.S.A. 21‑3107(4) provides that prior conviction of the lesser included offense bars subsequent prosecution on a greater offense unless “the [greater charge subject of the later proceeding] was not consummated at the time of conviction of the included crime.”
2. General versus Specific Offenses: 
Permissible Charges and Punishment. D’s conduct may sometimes violate both a generally defined prohibition (e.g., making a false statement to a government official) and a prohibition more specifically addressed to the conduct (e.g., making a false statement to a government official in connection with obtaining a housing loan). The rule of thumb, which may yield to other evidence of legislative intent, is that the specific prohibition controls and that D may be charged, convicted, and punished only under the more specific prohibition. State v. Wilcox, 245 Kan. 76 (1989).
Example: D obtains public assistance from a state agency by making false statements in documents submitted to that agency. One statute, K.S.A. 21‑3711, prohibits false writings while another, K.S.A. 39‑720, prohibits welfare fraud. Held: The legislature intended that D be charged and punished under the welfare fraud statute, the provision statute more specifically directed to her conduct. State v. Reed, 254 Kan. 52 (1993). 
            A criminal offense generally requires a wrongful act (actus reus), a wrongful intent (mens rea), and a concurrence of the act and intent. In addition, some offenses require the existence of a state of affairs (existent fact element) such as that drugs be sold “within 1,000 feet of a school.” Finally, certain other offenses require a harmful result, such as the death of a human being required by homicide offenses, and a causal link between D’s act and intent, on the one hand, and the proscribed result, on the other.
A. ACT (actus reus). 
Bad thoughts alone cannot constitute crime; there must be an action, or an omission to act where there is a legal duty to act.
1. Voluntariness. 
The act must be voluntary. Reflexive actions or acts occurring while D is unconscious or asleep are not considered voluntary. 
EXAMPLE: D, who knows himself to be subject to frequent seizures, drives his car. D has a seizure while driving, loses control, and kills a pedestrian. The act of losing control of the car, which is caused by the seizure, is not voluntary. However, the act of getting into the car and beginning to drive is a voluntary act. Given D’s knowledge that he is subject to frequent epileptic seizures, there is a concurrence between this voluntary act and the reckless state of mind required by involuntary manslaughter. There is also a causal link between D’s voluntary act and the proscribed result, i.e., the death of a human being. D may be convicted of involuntary manslaughter. 
2. Omission. 
A person may not be held criminally liable for a failure to act unless the law imposes on that person a duty to act under the circumstances.
Sources of a duty to act:
·         Statute. A person has a legal obligation to act when required by statute (e.g., statute requiring reporting of an accident or filing of a tax return).
·         Contract (e.g., a contract between a doctor and patient for medical treatment).
·         Fiduciary or other special relationship between D and another (e.g., parent’s duty to care for child).
·         Voluntary assumption of care (e.g. a Good Samaritan undertakes to help a stranger).
·         Putting another person in a dangerous position from which he/she needs rescue (e.g., pushing a nonswimmer into a pond).

nded license may be interpreted not to require that D know or even have reason to know that his license has been suspended. In other words, the offense is strict liability respecting the “suspended license” element. See State v. Marshall, 252 Kan. 415 (1993) (state required to prove only existence of suspension, not D’s knowledge thereof).
2. Meaning of “intentional.” 
Action is generally treated as “intentional” if it is either purposeful or knowing.
3. Factors influencing required culpability. 
In deciding whether an offense requires culpability and what level of culpability (purpose, knowledge, recklessness, negligence, strict liability) it requires, courts consider the following:
a. Statutory language defining the offense. The statute defining the offense may unambiguously specify the level of culpability required with respect to each element. However, based on the considerations set forth below, courts often interpret statutes that do not state any culpability requirement to require culpability nonetheless.
b. Statutory presumptions. If the language defining the offense is ambiguous, courts may resort to general statutory presumptions.
i. Kansas’ approach: purpose or knowledge presumptively required. K.S.A. 21‑3201 provides that unless the statute defining the offense otherwise so provides, “criminal intent is an essential element of every crime defined by this code.” Criminal intent means purposeful or knowing.
            * Exceptions.
–          recklessness will suffice when the statute defining the offense so provides.
–          intent not required with respect to age of a minor. K.S.A. 21‑3202.
–          intent not required respecting misdemeanor or traffic offenses clearly intended to impose strict liability. K.S.A. 21‑3204. See State v. Mountjoy, 257 Kan. 163 (1995)(misdemeanor of practicing the healing arts without a license does not require criminal intent).
ii. Model Penal Code. When the level of culpability is not otherwise specified, the Model Penal Code presumes that purposeful, knowing, or reckless conduct is required with respect to each element of the offense.
c. Severity of punishment. The more severe the permissible punishment, the stronger the case for requiring subjective culpability (intent or recklessness as opposed to negligence or strict liability) respecting each and every element of the offense. 
d. Malum in se vs. malum prohibitum. An offense that is malum in se (wrong in itself) is more likely to be held to require subjective culpability than is an offense that is malum prohibitum (wrong for debatable reasons of public policy).
i. Regulation of business. Offenses that regulate business are more likely to be held to be public welfare offenses or to require only negligence rather than subjective culpability.
ii. Prevention of possibility of harm rather than punishment of harm already