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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Johnson v. State (1/22/2010) sp-6454

Johnson v. State (1/22/2010) sp-6454, 224 P3d 105

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

FRANK R. JOHNSON, )
) Supreme Court No. S- 13023
Petitioner,)
) Court of Appeals No. A- 9444
v. ) Superior Court No. 2NO-04- 356 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 6454 - January 22, 2010
)
)
          Petition  for  Hearing  from  the  Court   of
          Appeals  of the State of Alaska, on  petition
          from  the  Superior Court  of  the  State  of
          Alaska,  Second Judicial District, Nome,  Ben
          Esch, Judge.

          Appearances:   Sharon Barr, Assistant  Public
          Defender,  Quinlan Steiner, Public  Defender,
          Anchorage,   for  Petitioner.    Timothy   W.
          Terrell,    Assistant    Attorney    General,
          Anchorage,   Talis   J.   Colberg,   Attorney
          General, Juneau, for Respondent.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti, Winfree, and Christen, Justices.

          WINFREE, Justice.


I.   INTRODUCTION
          We  are  asked in this petition for hearing to  clarify
the  standard of foreseeability for a criminal prosecution  based
on reckless conduct.
          A defendant is responsible for the natural consequences
of  his  or  her  act  or  failure to act.   But  the  defendants
liability  for  harm to another is not limitless because  natural
consequences  are those a reasonable person could have  foreseen.
If   the  trier  of  fact  finds  a  general  type  of  harm  was
foreseeable,  then the trier of fact must determine  whether  the
actual  harm  was  within  the scope  of  risk  hazarded  by  the
defendants  conduct.  The trier of fact need not find  the  exact
manner in which the actual harm occurred was foreseeable, but the
exact  manner  of  harm must not be too remote a  possibility  or
liability cannot be imposed.
          Because  in  this case the court of appeals  applied  a
foreseeability  standard  that  did  not  expressly   include   a
consideration  of remoteness, we vacate its decision  and  remand
for  further proceedings consistent with the standard articulated
in this opinion.
II.  FACTS AND PROCEEDINGS
          The   court   of  appeals  succinctly  set  forth   the
underlying facts of this case as follows:
               The  defendant  in this case,  Frank  R.
          Johnson,  was  the father of an infant  girl,
          Christina   Takak.   Christina   died   after
          prolonged abuse by her mother, Heather  Takak
          (Johnsons  long-time partner).  According  to
          the  testimony presented at the trial in this
          case,  Takak starved Christina to  the  point
          where the infant had essentially no fat  left
          in  her  body, and her muscles had atrophied.
          One  witness testified that Christina  looked
          like  a  famine  victim at the  time  of  her
          death.   The  jury found, however,  that  the
          immediate  cause  of  Christinas  death   was
          Takaks    act   of   intentionally   dropping
          Christina  on  the floor head-first,  causing
          trauma to her skull and brain.  This physical
          assault  (which preceded Christinas death  by
          one to three days) caused Christinas brain to
          hemorrhage   and  swell  inside  her   skull,
          leading to her death.[1]
          
          The  State prosecuted Johnson for second-degree  murder
premised  on  a  parents duty to protect his child from  physical
harm.2   The  state medical examiner testified at Johnsons  trial
that both head trauma and starvation caused Christinas death.  He
also  testified that the head trauma would have killed  Christina
even if she had not been starved, but either had the capacity  to
kill  her.  Johnsons forensic pathologist testified that although
Christina was profoundly starved and would likely have died,  the
sole cause of Christinas death was the head trauma and starvation
neither  caused nor contributed to her death.  Johnson argued  to
the  jury that even if it found he had been aware that Takak  was
starving  Christina, he had no reason to be aware of a particular
danger that Takak might assault Christina.
          The  jury acquitted Johnson of second-degree murder but
convicted him of manslaughter.  The jury also returned a  special
verdict  form  showing  unanimous agreement  that  the  cause  of
          Christinas death was head trauma, not starvation or a combination
of the two.
          Johnson  filed  a  motion  for judgment  of  acquittal,
arguing  that even if the State proved he recklessly  disregarded
the  risk  that  Takak was starving Christina, the jurys  special
verdict  established  that  starvation  did  not  contribute   to
Christinas  death.   The  trial court treated  the  motion  as  a
request for a new trial, vacated the verdict, and ordered  a  new
trial:
               The  court  has  no doubt that  evidence
          supports  a  jury verdict that the  defendant
          knew  that allowing Christina to remain  with
          Heather  Takak would result in her  death  by
          starvation  or  that  he  was  aware  of  and
          consciously  disregarded  a  substantial  and
          unjustifiable risk that allowing the baby  to
          remain  with  Heather Takak would  result  in
          starvation.  The court further believes  that
          the  evidence  supports  a  jury  verdict  of
          manslaughter, if starvation was a substantial
          factor   in  bringing  about  the  death   of
          Christina  Johnson.  The  testimony  of  [the
          state  medical  examiner] was clear  on  that
          issue.   Because  the  evidence  supports   a
          verdict  of manslaughter, given the  evidence
          from  the  trial,  the court  must  deny  the
          motion for judgment of acquittal.
          
               The  problem this case presents is  that
          the  jury  found  the  defendant  guilty   of
          manslaughter  and  then  further  unanimously
          found  the cause of death to be head  trauma.
          There  was  insufficient evidence to  suggest
          that  Frank  Johnson knew or was aware  of  a
          substantial  and  unjustifiable   risk   that
          Heather Takak would cause head trauma to  the
          child and did nothing. . . .
          
               .  . . The jury unanimously agreed as to
          the  cause of death.  The question is whether
          the   evidence   supports   a   verdict    of
          manslaughter  in the face of  that  unanimous
          special verdict.
          
               . . . The court believes that, under the
          circumstances of this case, it  should  treat
          [the acquittal] motion as a motion for a  new
          trial.   The court believes that between  the
          two  expert  witnesses,  [the  state  medical
          examiner] was more persuasive.  Had this case
          been tried to the court, the court would have
          returned  the same verdict as the  jury,  but
          any   special   verdict   would   have   been
          different.   The court believes  that  reason
          and  common  sense support a conclusion  that
          any person who is severely malnourished faces
          a  much  reduced likelihood of survival  when
          subjected  to  traumatic  injury.   In   that
          context,  inanition would  be  a  substantial
          factor   in  causing  any  subsequent  death.
          Nevertheless,  the jury concluded  otherwise.
          However,    because   substantial    evidence
          supports a verdict of manslaughter,  but  not
          manslaughter in the manner found by the jury,
          the  court will deny the motion for acquittal
          but grant a new trial.  (Emphasis added.)
          
          Johnson  petitioned the court of appeals, arguing  that
the  trial  court should have granted his motion for judgment  of
acquittal  and asking the court of appeals for that relief.   The
court of appeals instead reversed the trial courts order granting
a  new  trial and affirmed the manslaughter conviction,3  stating
that  Johnsons conviction stands or falls on whether a reasonable
jury  could  conclude Takaks physical assault  on  Christina  was
foreseeable:4
               When   (as   in   Johnsons   case)   the
          government   alleges  that  a  defendant   is
          criminally  responsible for harm  to  another
          person  because of the defendants failure  to
          perform a care-taking duty, a question  often
          arises  as  to whether the conduct  or  event
          that  caused  the harm was foreseeable  to  a
          person  in the defendants position.   As  our
          supreme  court explained in Joseph v.  State,
          26  P.3d 459 (Alaska 2001), the resolution of
          this  question of foreseeability is  relevant
          to  two  issues:   the issue of  whether  the
          defendant  failed to fulfill the  care-taking
          duty imposed by law, and the issue of whether
          a  superseding cause intervened to cause  the
          harm.
          
          . . . .
          
               .  . . [T]he defendants care-taking duty
          is  breached only if the defendant was  aware
          of the risk of harm and refrained from taking
          preventative action.  If the defendant  could
          not   reasonably  foresee  the  conduct  that
          caused  the  harm,  then there  would  be  no
          breach  of duty when the defendant failed  to
          take  action to prevent it.  And, by the same
          token,  if the conduct that caused  the  harm
          was  not foreseeable, then that conduct would
          normally  constitute a superseding  cause  of
          the harm.
          
               But  if,  on the other hand, the  danger
          was  foreseeable to the defendant, this would
          establish a breach of duty and, at  the  same
               time,  it  would preclude a  finding  of
          superseding cause.[5]
          
          Because  this case involves a legal duty of protection,
the  court  of appeals examined and discussed our explanation  of
foreseeability  in P.G. v. State, Department of  Health  &  Human
Services,  Division  of Family & Youth Services,6  a  civil  case
involving the states duty to inform potential foster parents of a
foster childs known dangerous propensities.7  Acknowledging P.G.s
broad  definition of foreseeability for tort liability, the court
of appeals nevertheless concluded that:
          [T]he   same   basic  principle  applies   to
          criminal  prosecutions based on a  breach  of
          the  duty  of care:  the harm to  the  victim
          will  be  deemed foreseeable  if  the  victim
          suffers  the  general type of harm  that  the
          defendant  could  foresee,  even  though  the
          defendant might not have been able to foresee
          the precise nature or details of the harm, or
          the  precise  manner in which  the  harm  was
          inflicted.[8]
          
          The  court of appeals determined that the general  type
of  harm  that Johnson could foresee was Christinas death through
her  mothers  abuse and that a jury could reasonably conclude  it
was foreseeable that Takak would tire of waiting for Christina to
starve to death and would turn to other, more immediate forms  of
child  abuse.9   The court of appeals concluded that  under  this
analysis,  the  evidence  submitted at trial  was  sufficient  to
support Johnsons manslaughter conviction.10
          Johnson petitioned our court to answer the question  of
whether  the  court  of  appeals  erred  in  imposing  the  civil
negligence definition of foreseeability to a criminal prosecution
based on reckless conduct.11
III. STANDARD OF REVIEW
          We  review  de  novo questions of law,12  such  as  the
appropriate definition of foreseeability.13  We adopt the rule of
law  that  is most persuasive in light of precedent, reason,  and
policy.14
IV.  DISCUSSION
          Johnson  was  convicted  of  manslaughter,  statutorily
defined as intentionally, knowingly, or recklessly caus[ing]  the
death  of  another  person under circumstances not  amounting  to
murder in the first or second degree.15  Recklessly is defined as:
          when  the  person is aware of and consciously
          disregards  a  substantial and  unjustifiable
          risk  that the result will occur or that  the
          circumstance exists; the risk must be of such
          a  nature  and  degree that disregard  of  it
          constitutes  a  gross  deviation   from   the
          standard of conduct that a reasonable  person
          would observe in the situation.[16]
          
If  death  was not a foreseeable result of an act or  failure  to
act,  the defendant cannot be guilty of manslaughter because  (1)
the   victims  death  would  not  have  been  a  substantial  and
unjustifiable risk17 and (2) the defendants act or failure to act
would not have been a proximate cause of the victims death.18
          Johnson had a legal duty to protect Christina from harm
because  he was her father.19  Substantial evidence was presented
at  trial  that Johnson provided some care for Christina  in  the
weeks leading up to her death and that Christinas starvation  was
so severe anyone providing care for her should have known she was
being starved to death.  Johnson argues that even if it had  been
foreseeable to him that Christina would die of starvation without
his  intervention,  it  was  not  foreseeable  that  without  his
intervention  Christina would die from injuries caused  by  Takak
deliberately dropping her on her head.  Thus, Johnson argues, his
failure to intervene to stop the starvation cannot be a proximate
cause of Christinas death by head trauma.
          We  have  not  addressed the scope  of  foreseeabililty
required  for  the imposition of criminal liability for  reckless
conduct.20  Johnson contends the imposition of criminal liability
for  reckless  conduct  mandates a much  narrower  definition  of
foreseeability for the required proximate cause formulation  than
that  found  in the civil context.21  Johnson urges us  to  limit
criminal  liability  to  circumstances where  the  defendant  can
foresee  the  specific manner in which the victim is  injured  or
killed.   Johnson  relies  first on the  following  passage  from
Professor LaFaves treatise:
          the  defendants conduct . . .  must  in  fact
          cause   the   death  of  a  person   who   is
          foreseeably  endangered by  the  conduct  and
          whose death occurs in a foreseeable way.   If
          it seems quite extraordinary that this victim
          was  killed  in  the way he was  killed,  the
          defendant is not liable for manslaughter. [22]
          
          Citing  State  v. Malone,23 Johnson then contends  that
existing  Alaska  law is in accord with Professor  LaFaves  view.
The relevant passages from State v. Malone are as follows:
               Although     a    defendants    criminal
          responsibility is broad, it is not limitless.
          The law does not hold a defendant responsible
          if  the injury or death, while perhaps linked
          to   the  defendants  conduct,  is  primarily
          caused by abnormal, unforeseeable conduct  on
          the  part of the victim or of a third person,
          so  that it no longer seems fair to say  that
          the  injury  was  caused  by  the  defendants
          conduct.  .  .  . [T]he law calls  the  other
          persons  conduct a superseding or intervening
          cause   of  the  injury   meaning  that   the
          defendant is excused from liability.
          
          . . . .

               Nevertheless, once a defendant  has  set
          events in motion, no conduct of the victim or
          of  a  third person will be a superseding  or
               intervening cause (that is, one that relieves
          the  defendant of criminal responsibility for
          an  ensuing  injury or a death)  if  (1)  the
          defendants  conduct created or  enhanced  the
          risk  that someone would suffer the  type  of
          injury  actually suffered by the victim,  and
          (2) the contributing conduct of the victim or
          of  the  third  person was  either  a  normal
          reaction to the defendants conduct or  was  a
          reasonably  foreseeable  consequence  of  the
          defendants conduct.[24]
          
          We  do  not agree with Johnsons narrow reading of these
passages.   It  is  true that Professor LaFave  advocates  for  a
stricter  standard of foreseeability for criminal liability  than
that imposed by tort law.25  But Professor LaFaves view and State
v.  Malone  do  not  inevitably lead to the  narrow  standard  of
foreseeability Johnson proposes.
          We also take into account the Model Penal Code text and
commentary,  which  was adopted in large measure  by  the  Alaska
legislature  in  1978.26   We, and the  court  of  appeals,  have
previously recognized the usefulness of the Model Penal Code  and
its   commentary  in  interpreting  Alaska  criminal  statutes.27
Consulting that source here seems particularly appropriate  given
the   similarity   between   Alaskas  statutory   definition   of
recklessness and that of the Model Penal Code.28  The Model Penal
Code formulation of foreseeability, which is similar or identical
to statutes in other jurisdictions,29 is especially informative:
          (3) When recklessly or negligently causing  a
          particular  result  is  an  element   of   an
          offense,  the  element is not established  if
          the  actual result is not within the risk  of
          which  the actor is aware or, in the case  of
          negligence,  of  which  he  should  be  aware
          unless:
          
          . . . .

          (b)  the actual result involves the same kind
          of  injury or harm as the probable result and
          is  not  too  remote  or  accidental  in  its
          occurrence  to have a [just] bearing  on  the
          actors  liability or on the  gravity  of  his
          offense.[30]
          
          The  Model Penal Code couches the relationship  between
liability  and  unforeseen consequences in terms of  culpability,
not  causation.31  The question is not whether the actual  result
occurs   in  a  manner  the  actor  knows  or  should   know   is
substantially  more  probable given  his  conduct   the  drafters
initially  proposed  such an alternative  ending  for  subsection
(3)(b),  but  ultimately recognized the need to be  flexible  for
application  to the infinite variety of cases that  may  arise.32
The comment to subsection (3) explains instead that if the actual
result  involved the same kind of injury or harm as the  probable
          result, the question asked is whether the actual result is too
remote  or accidental in its occurrence to have a [just]  bearing
on the actors liability . . . .33
          The   Model  Penal  Code  provision  and  its   related
commentary  make  clear that the exact manner in  which  a  crime
occurs need not correspond precisely to the potential risk  posed
by  the  defendants behavior.34  We agree that the high price  of
criminal  liability  should not be paid  where  the  relationship
between a defendants conduct and its consequences is only  remote
or  accidental.   Yet  we also agree with the  Model  Penal  Code
drafters that one cannot escape criminal liability simply because
his  conduct  did  not produce the intended or even  most  likely
chain of events.  As the drafters rightly concluded, the need for
flexibility  is  great.   We  cannot  fashion  a  rule  detailing
precisely which consequences are too remote to preclude  criminal
liability  that will be left to the fact finder.
          With  these principles in mind we turn to the  specific
definition  of foreseeability to be used in determining  criminal
liability  for reckless conduct.  A defendant is responsible  for
the  natural  consequences of his or her act or failure  to  act.
Natural consequences are those reasonably foreseeable in light of
ordinary experience.35  The defendant need not have foreseen  the
specific manner of resulting harm so long as (1) the general type
of harm was foreseeable, and (2) the actual harm falls within the
scope  of risk hazarded by the defendants conduct and is not  too
remote or accidental in occurrence.36
          We  agree  with Johnson that using P.G.s definition  of
foreseeability was error, even though the only difference between
P.G.s   definition  and  that  announced  today  is  the  express
consideration  of  remoteness.   But  we  decline  to  apply  the
definition  of foreseeability articulated in our opinion  to  the
facts  of this case or to consider Johnsons argument that retrial
would violate double jeopardy principles.
V.   CONCLUSION
          We VACATE the court of appealss decision and REMAND for
further proceedings consistent with this opinion.
_______________________________
     1    Johnson v. State, 175 P.3d 674, 675 (Alaska App. 2008).
We  also  note that although underweight at birth (she  was  born
prematurely), Christina stopped gaining weight in July 2003  when
she weighed roughly 10 pounds.  Christina weighed 7.7 pounds when
she died in November 2003, just weeks before her first birthday.

     2     See Willis v. State, 57 P.3d 688, 693-97 (Alaska  App.
2002) (affirming conviction for criminal responsibility based  on
parents  failure  to act to protect child from assault  by  other
parent);  Michael  v.  State, 767 P.2d 193, 197-98  (Alaska  App.
1988) (holding that parent can be held responsible for assault on
child if parent, knowing that child is in danger of assault  from
other  parent,  unreasonably fails  to  take  action  to  protect
child), revd on other grounds, 805 P.2d 371 (Alaska 1991).

     3    Johnson, 175 P.3d at 681.

     4    Id. at 678.

     5    Id. (emphasis in original).

     6    4 P.3d 326 (Alaska 2000).

     7     Id.  at  332-35  (concluding foreseeability  does  not
require  an ability to predict precise actions and exact injuries
and  holding  in  part it was error to find  no  genuine  factual
dispute on issue of foreseeability).

     8    Johnson, 175 P.3d at 680.

     9    Id.

     10    Id.

     11    The State argues that Johnson proposed jury instruction
language  embodying the same standard employed by  the  court  of
appeals  and,  consequently, that any  error  was  invited.   The
invited error doctrine limits the scope of review on appeal  when
a party urges a lower court to do something that it later appeals
as  erroneous.  Barrett v. State, 772 P.2d 559, 568 n.10  (Alaska
App. 1989).

          Johnson  correctly  points out that his  proposed  jury
instruction  related to proximate cause, but did  not  contain  a
definition  of  foreseeability.  The most relevant  statement  in
that   instruction  is:   the  law  does  not  hold  a  defendant
responsible if the death, while perhaps linked to the  defendants
conduct,  is  primarily caused by extraordinary or  unforeseeable
conduct on the part of a third person, so that it no longer  [is]
reasonable  to  say that the injury was caused by the  defendants
conduct.

          Because this petition deals solely with the appropriate
standard  of  foreseeability to sustain  a  conviction  based  on
reckless  conduct, the invited error doctrine does not limit  our
review.

     12    See Turney v. State, 936 P.2d 533, 538, 544-45 (Alaska
1997) (interpreting criminal trespass statute de novo).

     13     See Beck v. State, Dept of Transp. & Pub. Facilities,
837 P.2d 105, 109 (Alaska 1992) (stating that extent of duty owed
based  on  whether  defendant should  foresee  an  injury   is  a
question of law).

     14     Cameron  v. State, 171 P.3d 1154, 1156 (Alaska  2007)
(quoting James v. State, 84 P.3d 404, 406 (Alaska 2004)).

     15    AS 11.41.120(a)(1).

     16    AS 11.81.900(a)(3).

     17    Id.

     18    See 1 Paul H. Robinson, Myron Moskovitz, & Jane Grall,
Criminal  Law  Defenses   88(e)  (1984)  (emphasizing  that  when
determining whether an actor is the proximate cause  of  a  death
the inquiry is whether the harm was too remote a possibility).

     19    See Willis, 57 P.3d at 693-97; Michael, 767 P.2d at 197-
98.

     20     In Wren v. State we considered a defendants challenge
to  a jury instruction on proximate cause in a negligent homicide
case  allowing  multiple proximate causes.   577  P.2d  235,  240
(Alaska  1978).  The defendant based her arguments on a  line  of
cases   from  other  states  applying  different  standards   for
proximate  cause  in  civil and criminal  cases,  such  that,  in
criminal cases, the defendant could be convicted only if  his  or
her  actions were the sole proximate cause of the harm.  Id.   We
rejected   that  argument.   Id.   Although  Wren   allowed   the
imposition  of that particular civil standard of proximate  cause
in  criminal  cases,  it did not address the  specific  issue  of
foreseeability.

     21     Professor Wayne LaFave, in his treatise,  Substantive
Criminal  Law,  concludes that the civil standard  for  proximate
cause  has at least some bearing on the issue of proximate  cause
in criminal law:

               The problems of legal causation arise in
          both tort and criminal settings, and the  one
          situation is closely analogous to the  other.
          Although  the  courts have generally  treated
          legal  causation in criminal law as  in  tort
          law,  on  principle they do not have to,  for
          the  issue is not precisely the same  in  the
          two situations. . . .
          
               But  with crimes, where the consequences
          of  a determination of guilt are more drastic
          (death or imprisonment, generally accompanied
          by  moral condemnation, as contrasted with  a
          mere  money  payment) it is arguable  that  a
          closer   relationship  between   the   result
          achieved and that intended or hazarded should
          be required.
          
1  Wayne  R. LaFave, Substantive Criminal Law  6.4(c), at  471-72
(2d ed. 2003) (footnotes omitted).

     22    2 id.  15.4(c), at 527 (emphasis added by Johnson).

     23    819 P.2d 34 (Alaska App. 1991).

     24     Id. at 37 (citing (for the second passage) Rollin  M.
Perkins  &  Ronald N. Boyce, Criminal Law  9, at 814-15  (3d  ed.
1982))

     25    See 1 LaFave, note 21, above,  6.4(c) at 471-72.

     26     Jeffries  v. State, 169 P.3d 913, 916  (Alaska  2007)
(quoting Pears v. State, 698 P.2d 1198, 1202 (Alaska 1985)).

     27     See,  e.g.,  Pears, 698 P.2d at  1203  n.10  (quoting
Neitzel  v.  State,  655  P.2d  325,  327  (Alaska  App.   1982))
(Nevertheless, the Model Penal Code is the foundation upon  which
our  code  rests  and a researcher interested in discovering  the
meaning  of a given Alaskan criminal statute must begin with  the
Model Penal Code and its comments . . . .).

     28    Compare AS 11.81.900(a)(3):

          [A] person acts recklessly with respect to  a
          result  or to a circumstance described  by  a
          provision of law defining an offense when the
          person is aware of and consciously disregards
          a substantial and unjustifiable risk that the
          result  will  occur or that the  circumstance
          exists; the risk must be of such a nature and
          degree  that  disregard of it  constitutes  a
          gross  deviation from the standard of conduct
          that a reasonable person would observe in the
          situation . . . .
          
with  Model Penal Code  2.02(c), at 226 (Official Draft & Revised
Comments 1985):

          A  person acts recklessly with respect  to  a
          material  element  of  an  offense  when   he
          consciously  disregards  a  substantial   and
          unjustifiable risk that the material  element
          exists or will result from his conduct.   The
          risk  must  be  of such a nature  and  degree
          that,  considering the nature and purpose  of
          the  actors  conduct  and  the  circumstances
          known  to him, its disregard involves a gross
          deviation from the standard of conduct that a
          law-abiding  person  would  observe  in   the
          actors situation.
          
     29     See, e.g., Ala. Code  13A-2-5 (1975); Del. Code  Ann.
tit. 11,  263 (1995); Haw. Rev. Stat.  702-216 (1984); Mont. Code
Ann.   45-2-201  (1973); N.J. Stat. Ann.  2C:2-3;  18  Pa.  Cons.
Stat. Ann.  303 (West 2003).

     30    Model Penal Code, note 28, above,  2.03, at 253-54.

     31    See id. cmt. 2, at 258.

     32     Id.  cmt.  3,  at  261  n.17 (noting  also  that  the
prevailing  view  puts  a much less artificial  question  to  the
jury).

     33    Id. at 263-64.  The comment further explains that, with
respect  to subsection (3), the actual result is to be contrasted
with  the probable result in terms of its specific character  and
manner of occurrence.  Id. at 260 n.13.

     34    Id. at 261-64.

     35     State  v.  Lovelace, 738 N.E.2d 418, 427  (Ohio  App.
1999).  In that case the Ohio Court of Appeals stated:

               It   should  be  emphasized   that   for
          something  to  be foreseeable does  not  mean
          that  it be actually envisioned. . . . It  is
          not  necessary  that the accused  [be]  in  a
          position  to  foresee the precise consequence
          of  his conduct; only that the consequence be
          foreseeable  in the sense that what  actually
          transpired was natural and logical in that it
          was  within the scope of the risk created  by
          his conduct.
          
Id.  at  428 (quoting State v. Losey, 491 N.E.2d 379,  383  (Ohio
App.  1985)).   In Lovelace the Ohio court held  the  jury  could
reasonably have concluded the defendant should have foreseen that
by  leading the police on a high-speed chase, one of his pursuers
could lose control of his car and kill a bystander.  Id.

     36     See  id. at 427-28; Model Penal Code, note 28, above,
2.03, cmt. 3, at 261-64.

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