Haw. Rev. Stat. § 702-222: Liability for conduct of another; complicity.

A person is an accomplice of another person in the commission of an offense if:

(1) With the intention of promoting or facilitating the commission of the offense, the person:

(a) Solicits the other person to commit it;

(b) Aids or agrees or attempts to aid the other person in planning or committing it; or

(c) Having a legal duty to prevent the commission of the offense, fails to make reasonable effort so to do; or

(2) The person's conduct is expressly declared by law to establish the person's complicity. [L 1972, c 9, pt of §1; gen ch 1993]

Revision Note

In paragraph (1)(a), "or" deleted pursuant to §23G-15.

COMMENTARY ON §702-222

This section sets forth the types and extent of complicity in the penal conduct of another. In subsection (1) the Code sets forth the state of mind that is required--"intention of promoting or facilitating the commission of the offense"--and the nature of action or omission on the part of the defendant which is sufficient to establish complicity in and liability for the conduct of another. The Code avoids the vague concept of conspiracy in basing penal liability on the conduct of another, and focuses instead on the conduct of the accused which is sufficient to establish the accused's complicity.

The Code includes solicitation, aid, agreement and attempt to aid, and the failure to make a proper effort to exercise a legal duty to prevent commission of the offense. Since the intent to promote or facilitate the commission of the offense is present, there is no risk of innocence. Given the intent specified, the inclusion of attempts to aid seems entirely proper. Acquittal should not be had upon a showing of ineffective aid. "Where complicity is based upon agreement or encouragement, one does not ask for evidence that they were actually operative psychologically on the person who committed the offense; there ought to be no difference in the case of aid."[1]

It should be pointed out that approval of the conduct of another is not to be implied from the phrase "with intention of promoting or facilitating the commission of the offense." For example, a landlord who leases premises with intent to facilitate another's establishing an illegal gambling casino or narcotics den would be liable regardless of the landlord's personal predilections.

Subsection (2) preserves the concept that special legislation may declare specific conduct of the accused sufficient to establish the accused's complicity in the conduct of another. Such legislation is an analogue to that declaring particular acts of assistance independent offenses. Thus, for example, being a member of a mob may suffice to establish complicity in a riot or looting or lynching.