Acting Indirectly

I was recently updating a list of review questions for a course on larceny offenses when I came across a version of this scenario: a woman tells her friend that she left one of her items behind in the store and asks the friend to go retrieve it for her, but in fact the woman never purchased it. If the friend goes back and gets it, what’s the crime and who gets charged?

The question usually prompts a good discussion about conventional charging options like conspiracy, acting in concert, aiding and abetting, or being an accessory. Phil Dixon wrote this helpful post summarizing the most common theories of principal liability and their pleading requirements, but none of those are a perfect fit for these facts. The woman wasn’t present at the scene and didn’t personally take the item, and the friend was unaware of what was happening so there was no common purpose or criminal intent on her part.

I think the best answer is the rarely mentioned “other” theory of principal liability we have in North Carolina: Acting Indirectly, also known as the Innocent Agent doctrine.

Elements and Authority?

You won’t find this doctrine covered in the 202 series of Criminal Pattern Jury Instructions on principals and accessories, nor is it included among the sample charges in Arrest Warrant and Indictment Forms, but it is briefly discussed in NC Crimes. As explained in that entry, a person is guilty as a principal in the crime if:

(1) with the required state of mind
(2) he or she causes the occurrence that constitutes the crime
(3) by using another who is not himself or herself guilty but brings about the occurrence in the person’s absence.

The third element refers to making use of another person who is not guilty of the crime due to insanity, immaturity, or lack of knowledge regarding what he or she was doing. The doctrine comes from the common law, and the most frequently cited North Carolina authority for it is State v. Benton, 276 N.C. 641 (1970). The defendant in Benton was convicted as a principal in her husband’s murder, based on her act of persuading a mentally challenged co-worker with whom she was romantically involved to shoot her husband. In affirming her conviction, the state Supreme Court explained that if the co-worker was competent and sane, then the defendant’s actions would make her guilty as an accessory before the fact based on procuring and encouraging the crime; conversely, if the co-worker could not be found culpable because he lacked the necessary mental capacity, the defendant would still be guilty as a principal based on the innocent agent doctrine:

Actual presence, however, becomes immaterial when a person causes a crime to be committed by an innocent agent, that is, one who is not himself legally responsible for the act. ‘If a person causes a crime to be committed through the instrumentality of an innocent agent, he is the principal in the crime, and punishable accordingly, although he was not present at the time and place of the offense * * *. Under such circumstances, an exception to the rules applicable to principals and accessories, in the trial of criminal cases arises ex necessitate legis.’ 22 C.J.S. Criminal Law s 84b (1961).

Id.; see also State v. Moore, 311 N.C. 442 (1984) (principal is one “who actually perpetrates the crime either by his own hand or through an innocent agent“); State v. Furr, 292 N.C. 711 (1977) (“A principal is one who is present at and participates in the crime charged or who procures an innocent agent to commit the crime”); State v. Buie, 26 N.C. App. 151 (1975) (“the accused would be guilty as a principal when he causes a crime to be committed through an innocent agent, that is, one who is not himself legally responsible for the act” such as a person who lacks mental capacity).

How is it Charged?

Normally, it isn’t — and I mean that in two ways. First, this theory of liability doesn’t come up very often in the case law, so we don’t have many examples of recommended charging language. And second, just like with aiding and abetting or acting in concert, this doctrine merely describes the nature of the person’s principal liability for the underlying offense, and therefore it should not need to be separately alleged in order to be submitted to the jury. See generally State v. Westbrooks, 345 N.C. 43 (1996) (where indictment specifically alleged acting in concert, that language was mere surplusage and it was proper to submit theory of accessory before the fact to jury). Of course, the parties or the court may want to plan ahead and draft an appropriate jury instruction if they anticipate it being an issue in the case.

If the state does wish to directly allege this theory, perhaps for reasons of clarity or notice, a plain and simple allegation that is generally in keeping with pleading guidelines in statutes such as G.S. 15-153 and 15A-924 should be sufficient. For example, the recommended charging language used to allege aiding and abetting:

…unlawfully, willfully, and feloniously did aid and abet [name the person(s) who committed the crime and/or write “persons unknown”] in unlawfully, willfully, and feloniously (give charging language for the offense that was committed)

Could be modified pretty easily to allege indirect action instead:

…unlawfully, willfully, and feloniously did act indirectly through [name the innocent person(s) who was/were indirectly used and/or write “persons unknown”] to unlawfully, willfully, and feloniously (give charging language for the offense that was committed).

Rare for a Reason, Right?

I agree — the fact patterns where this doctrine would apply do not come up in practice nearly as often as the more conventional theories of liability discussed above. The classic example used in a number of treatises and cases (defendant poisons the victim by using an innocent third party who thinks the substance is medicine) sounds more like an Agatha Christie plot twist than a real homicide case.

But before dismissing the example I gave in the introduction as just a far-fetched academic exercise, consider some of the real-world situations in which a perpetrator could use an unwitting accomplice, innocent bystander, or even another victim to carry out the essential acts of an offense:  frauds and other financial crimes; making prohibited communications or false reports; and possession of drugs or stolen property, just to name a few. See, e.g., People v. Mullins, 322 Mich. App. 151 (2017) (“Considering the facts of this case in line with the innocent-agent doctrine, we find no error with charging and convicting defendant” for using a minor child to make false reports of abuse); McAlevy v. Commonwealth, 44 Va. App. 318 (2004) (“the majority of jurisdictions that have considered the innocent agent doctrine in larceny cases have adopted the view that asportation by an innocent purchaser from the non-owning seller establishes the ‘seller’ as the principal in the first degree”); Ball v. State, 2016 WL 7422689 (Ak. App. 2016) (unpublished) (“even if McMahon was an innocent agent, Ball would be legally accountable if he or his accomplice friend caused McMahon to unwittingly take possession of the heroin”).

Additionally, as Benton illustrated above, the doctrine can even apply in cases where force or violence is indirectly carried out against the victim by an innocent third party. See, e.g., State v. Brown, 147 Vt. 324 (1986) (defendant in sexual assault case could “be charged as a principal under the doctrine of innocent agent” based on forcing another person to have intercourse with the victim).

As always, thanks for reading and stay healthy.

• Update, 2/10/21: Great point raised by a reader – in the opening example, why not just charge obtaining property by false pretenses, Class H felony? In most cases the false representation will be made to the victim whose property is being taken, and that’s the expectation reflected in jury instruction 219.10 (“the victim was in fact deceived by this representation” and “the defendant thereby [obtained] [attempted to obtain] property from the victim”) but G.S. 14-100(a) actually says “it shall not be necessary to prove…that the person to whom the false pretense was made was the person defrauded,” so I think that offense could work here as well. See, e.g., State v. Coppola, 174 N.C. App. 626 (2005) (unpublished) (affirming false pretense conviction where “defendant made a false pretense to Voice Data Solutions in making the telephonic payment with an intent to defraud the Manions”). Thanks for the feedback.