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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 to which Becky’s former boyfriend, Adam Arnott, belongs. Several blocks away begins the neighborhood of Sun City South, which is controlled by the Sharks’ arch-rivals, the Jets. Becky lives with her Mom and Dad just down the block from Adam’s house. Adam and the Sharks usually 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 relationship had been tense and hostile ever since. One afternoon a few Sharks, including Adam, are hanging out at their usual corner when Becky 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! ‘Bout time 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 the floor with you sissies in no time!” responds Becky, as she opens the front door to her house and disappears inside. Adam tells his fellow Sharks to collect as many members of the gang as they can 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 to Benson Drugstore at 8:30 p.m. Carl leaves to carry out this commission, and Adam spends the rest 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 gang member, Earl Engle, that he (Duke) is “carrying” (a gun). Adam is not present at the time Duke says this. By 8:45 p.m. Adam and the Sharks are all present on the corner, swinging their bats and talking tough while they wait. By 9:30 p.m., just as the Sharks are wondering whether any Jets are going to show, they see 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 to talk 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 his waistband 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 Greg Garrish is later pronounced dead on arrival at the hospital.

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After seeing Garrish fall, the Sharks drop their bats and run in different directions. Adam Arnott 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 the next player. After one round with no injuries to any of the three players, Carl calls a time out to go look into his Dad’s liquor cabinet for some “refreshments.” During this interval, Kris, who had 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 and Greg Garrish. That same night she packs a bag and takes the bus out of Sun City. She travels 300 miles East to Fog City, the capital of Fogstate, where her aging uncle, Lyle Lightner, lives in a large house near the center of town. Becky moves in with Uncle Lyle, takes a job as a waitress at the Hideaway Café down the street from her uncle’s house, and begins dating Mike Mitchelson, the owner of the Hideaway Café. Soon thereafter, Lyle Lightner dies (of natural causes), leaving his house to Becky. Mike moves in with Becky, but the relationship does not go well. Mike becomes increasingly 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, upon her 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 table amid a half-dozen empty beer bottles, is Mike. “Well, hallo there,” he drawls, slurring his words. “Long time no see – Bitch!” Becky turns to run, but Mike grabs her before she can escape. “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, where he 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 the chair – but to no avail. Sobbing, she reflects on the many times Mike has beaten her; on the hospitalization she’d recently endured after one such beating; on the time when, after she had fled to her best friend Nancy Nimble’s house, he had come over, barged into the house, and dragged 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’m going to cut you loose.” In a few minutes Becky is free. She and Nancy tiptoe past Mike, who sits motionless with his head on the kitchen table, snoring. Grabbing her purse, Becky leaves the house; 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 and meets with Orlando Osterville, a local drug lord with a reputation for “disappearing” people he does not like. Becky explains her predicament with Mike; produces $10,000 in cash; and asks Osterville to please “find somebody who can rid the world of that bastard.” Orlando Osterville assures her that he will “take care of it”; watches Becky drive away; pockets the cash; and takes no 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, and invites him to come along with her. Peter agrees. It is night, and dark, and by midnight she and Piper 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 and chained in wintertime, but several weeks before Robert Rickover, an avid deerhunter, had cut the lock and driven through the gate in order to do some out-of-season shooting in the deer-filled mountain woods nearby. Afraid of being caught hunting out of season (a third-degree felony in the state), Robert had chosen the private road because he knew it was isolated and was almost never traveled in winter. From a hunting perspective, it was a good choice – Robert had killed two enormous deer that day and had successfully lugged the two carcasses back up the road and home. Becky and Peter are not so lucky. A few miles down the road their car becomes stuck in the 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 next morning Peter announces that he intends to go for help. He leaves Becky in the vehicle, where there is enough gas to keep her heated for a day or two, and heads back up the road toward the fork where they had taken a wrong turn. But, barely a mile up the road, Peter slips on some snow-covered ice, tumbles down a ravine, and strikes his head on the rocks below. He dies without regaining consciousness. Becky waits all day and the following night for Peter to come back. When he does not return by the next morning, Becky realizes that something must have happened and that she must go 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 lodge is closed for the winter, the doors locked and barred. By smashing a window Becky gains entrance, 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 two months 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 the lodge, 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 the following 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 assume that the attached statutes were in force at all times during the events described above.

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STATUTES

Sec. 350 Criminal Battery A person commits criminal battery when (s)he uses unlawful force against another, resulting in harmful 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)he knowingly enters onto the property of another without the owner’s permission and without any other 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,

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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.

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