Can a defendant be convicted of aiding and abetting a negligent or reckless crime?

aid and abet

Desai (Dipak) vs. State (Nev. Supreme Ct. – Jul. 27, 2017)

A jury convicted Desai of, among other things, seven counts of performance of an act in reckless disregard of persons or property resulting in substantial bodily harm pursuant to NRS 202.595(2), and seven counts of criminal neglect of patients resulting in substantial bodily harm pursuant to NRS 200.495(1), collectively characterized as the endangerment crimes. The issue is whether a defendant can aid and abet a negligent or reckless crime, such as the endangerment crimes at issue here.

Desai was the original founding member and managing partner of the Endoscopy Center of Southern Nevada and other ambulatory surgical centers (collectively, the clinic) in Las Vegas. Desai made all decisions regarding the clinic, including the ordering and use of supplies and scheduling of patients. He was also in charge of the certified registered nurse anesthetists.

On July 25, 2007, the clinic’s first patient of the day informed Desai that he had hepatitis C before his procedure began. Later that day, Washington had a procedure performed at the clinic. Washington was later diagnosed with hepatitis C. On September 21, 2007, the clinic’s first patient of the day informed a nurse that he had hepatitis C before his procedure began. Later that day, Rivera, Martin, Aspinwall, Hutchinson, and Meana had procedures performed at the clinic. All five patients were later diagnose with hepatitis C. Meana received some treatment following his diagnosis, but failed to adequately complete any treatment and eventually died as a result of the disease.

After learning that multiple patients contracted hepatitis C at the clinic, the Southern Nevada Health District initiated an investigation. Blood samples of the infected patients were sent to the Centers for Disease Control and Prevention (CDC). The CDC determined that the sources for the strains of hepatitis C contracted by Washington, Rivera, Martin, Aspinwall, Hutchinson, and Meana were the patient seen first at the clinic on July 25, 2007, and the patient seen first at the clinic on September 21, 2007. The CDC also concluded that the outbreak was the result of the clinic’s nurse anesthetists reentering vials of propofol after injecting a patient and then reusing those vials of propofol on a subsequent patient.

Desai, along with Lakeman and Mathahs, who were both nurse anesthetists at the clinic, were indicted. Desai and Lakeman were charged with ten counts of insurance fraud, seven counts of performance of an act in reckless disregard of persons or property resulting in substantial bodily harm, seven counts of criminal neglect of patients resulting in substantial bodily harm, theft, two counts of obtaining money under false pretenses, and second-degree murder. Mathahs agreed to testify against Desai and Lakeman after pleading guilty to criminal neglect of patients resulting in death, criminal neglect of patients resulting in substantial bodily harm, obtaining money under false pretenses, insurance fraud, and conspiracy. A jury found Desai guilty of all counts except one omitted count of insurance fraud. Desai appealed.

On appeal, Desai argued that there was insufficient evidence to convict him of the endangerment crimes because he did not possess the intent required to prove that he aided and abetted Lakeman and Mathahs.

The criminal offenses at issue here are set forth in NRS 202.595 and NRS 200.495. NRS 202.595 prohibits a person from “perform[ing] any act or neglect[ing] any duty imposed by law in willful or wanton disregard of the safety of persons or property.” NRS 200.495(1) punishes “[a] professional caretaker who fails to provide such service, care or supervision as is reasonable and necessary to maintain the health or safety of a patient.” And NRS 195.020 provides that a person who aids and abets in the commission of a crime shall be punished as a principal. However, the Nevada Supreme Court had not previously determined whether one can aid and abet a reckless or negligent crime.

The Court explained that some jurisdictions have determined that a defendant cannot be convicted of aiding and abetting a reckless or negligent crime because “it is logically impossible to intend to aid” another in acting recklessly or negligently. Audrey Rogers, Accomplice Liability for Unintentional Crimes: Remaining Within the Constraints of Intent, 31 Loy. L.A. L. Rev. 1351, 1383 (1998). These jurisdictions opine that “[a]pplying accomplice liability [to reckless or negligent crimes] raises troubling questions about whether the complicity doctrine is being stretched beyond its proper limits merely to find a means of punishing the [secondary actor].” Id. at 1353.

It appeared to the Court, however, that courts are moving away from this rule, see id. at 1352 (explaining that “a growing number of courts have found secondary actors responsible for another individual’s unintentional crime”), because “giving assistance or encouragement to one it is known will thereby engage in conduct dangerous to life should suffice for accomplice liability.” Wayne R. LaFave, Criminal Law § 13.2(e) (5th ed. 2010). The Court was persuaded by the rationale for this approach and thus declined to completely excuse an aider and abettor of a reckless or negligent crime from liability. Although NRS 195.020 provides that an aider and abettor shall be punished as a principal, the statute “does not specify what mental state is required to be convicted as an aider or abettor.” Sharma v. State, 118 Nev. 648, 653, 56 P.3d 868, 870 (2002). Thus, the Court had to determine what mental state was required to convict an aider and abettor of a reckless or negligent crime.

In Sharma, the appellant challenged his conviction for aiding and abetting attempted murder, arguing that the jury was improperly instructed on the necessary elements of the crime. Id. at 650, 56 P.3d at 869. The Nevada Supreme Court had held “that in order for a person to be held accountable for the specific intent crime of another under an aiding or abetting theory of principal liability, the aider or abettor must have knowingly aided the other person with the intent that the other person commit the charged crime.” Id. at 655, 56 P.3d at 872 (emphasis added). The mental state articulated in Sharma for specific intent crimes left open the question as to the mental state required for reckless or negligent crimes. Consistent, however, with its reasoning in Sharma, the Court concluded that an aider and abettor must act with awareness of the reckless or negligent conduct and with the intent to promote or further that conduct.

The Court noted that its holding was consistent with how other jurisdictions have held. See, e.g., People v. Wheeler, 772 P.2d 101, 105 (Colo. 1989) (“[T]he complicitor must be aware that the principal is engaging in [negligent] conduct.” (emphasis added)); State v. Foster, 522 A.2d 277, 284 (Conn. 1987) (“[A] person may be held liable as an accessory to a criminally negligent act if he . . . intentionally aids another in the crime.”); Commonwealth v. Bridges, 381 A.2d 125, 128 (Pa. 1977) (“[A]n accomplice’s conduct must, with the intent to promote or facilitate, aid one whose conduct does causally result in the criminal offense.”); State v. McVay, 132 A. 436, 439 (R.I. 1926) (determining that the defendant could be charged as an aider and abettor because he “recklessly and willfully advised, counseled, and commanded [the principals] to take a chance by negligent action or failure to act”).

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