The Journal of The DuPage County Bar Association

Back Issues > Vol. 14 (2001-02)

Applying the Inevitably Incident Conduct Statute: Did the Appellate Court "Get It Wrong?"
By Edward C. Carter, III

The Illinois Criminal Code imposes responsibility as principals on persons who aid or abet another in the commission of a criminal offense.1 An important aspect of aider and abettor responsibility is that where a criminal statute defines a class of people who can commit the offense, an aider may be convicted of committing that offense even if he is outside of the defined class.2 Thus, in Illinois, in the era when the crime of rape was defined as a male having carnal knowledge of a female without her consent, a woman could be convicted of rape if she assisted a male in committing the offense.3

An important limitation on the reach of aider and abettor responsibility in Illinois is the inevitably incident conduct exception.4 This statutory exception states that unless the statute defining the offense provides otherwise, a person is not accountable as an aider and abettor when an offense is so defined that the aider’s conduct is inevitably incident to the commission of the offense.5 In People v. Issacs,6 the Illinois Supreme Court held that this rule applies to offenses that, by their definition, require the action of two or more persons.7

In People v. Bohne,8 the Illinois appellate court ignored the Isaacs "definition-based" rule for determining the applicability of the inevitably incident conduct statute, and held that when the offense may be committed by a single person, the court must look at how the offense was committed. If the offense was committed in such a way that the defendant’s conduct was inevitably incident to its commission, the inevitably incident conduct statute applies and bars prosecution.9 This article examines the Bohne decision and argues that the appellate court incorrectly ignored Isaacs’ definitional test and consequently erred in applying the inevitably incident conduct statute to the case before it.

1. The Bohne Decision

In the Bohne case, the defendant, John Bohne, and the corporation of which he was the president, Imperial Crane Services, Inc., were charged with failing to file Illinois Use Tax returns in violation of 35 ILCS §105/10.10 Each count of the indictment alleged that Imperial was the purchaser and user of cranes, and, that with the intent to facilitate the commission of the offenses, Bohne aided and abetted Imperial in failing to file its Use Tax returns.11 Because Bohne was neither the purchaser nor user of the cranes, Bohne himself could not have committed the offenses.12 The trial court dismissed the charges against Bohne and the State appealed.

On appeal, Bohne argued that his conduct in failing to file the Use Tax returns on behalf of Imperial was inevitably incident to Imperial’s failure to file and thus, because of the inevitably incident conduct statute, he could not be held legally accountable for the corporation’s criminal conduct. The State, relying on the Isaacs case, argued that the inevitably incident conduct statute applied only to offenses that, by their definition, required more than one participant and that failing to file a Use Tax return was not such an offense.

The appellate court agreed that the offense of failing to file a Use Tax return could be committed by one person, but affirmed the trial court’s ruling, holding that in the case before it, because the offense was committed by a corporation and because the corporation could only commit the offense through its agents, the inevitably incident conduct statute barred prosecution.13 Thus, the Bohne court held that without regard to how an offense is defined, when, as committed and charged, a defendant’s conduct is inevitably incident to the commission of the offense, the inevitably incident conduct statute bars prosecution.

2. The Bohne Court Misapplied the Inevitably Incident Conduct Statute

This section of the article argues that the Bohne court improperly applied the inevitably incident conduct statute because: A) the Illinois Supreme Court has indicated, and other courts have held, that the definition of an offense and not how the offense is committed determines the applicability of the inevitably incident conduct statute; B) the terms of the inevitably incident conduct statute itself clearly indicate that its application should be determined by the definition of the offense and not by how the offense was committed; and C) the rule for applying the conceptually similar Wharton’s Rule also suggests that the application of the inevitably incident conduct statute should be determined by the definition of the offense and not by how, in a particular instance, the offense was committed.

A. The Illinois Supreme Court Has Indicated That The Definition of An Offense Determines The Applicability of the Inevitably Incident Conduct Statute

In the Isaacs case, Isaacs and Cook Envelope and Lithographing, Inc. were charged with aiding and abetting co-defendant John J. Lang in defrauding the State of Illinois.14 Section 4 of the statute under which they were charged15 made it a crime for any officer or employee of the Department of Finance16 to corruptly collude or have a secret understanding with any person to defraud the State of Illinois.17 Isaacs was not an employee of the Department of Finance and the trial court dismissed the charges against him. The State appealed.

On appeal, Isaacs argued that Section 4 was a special penal statute applying only to employees of the Department of Finance and thus did not charge him with committing an offense.18 Our Supreme Court agreed that Section 4 was a special penal statute but said that persons outside of its defined class could not be accountable as aiders and abettors in committing the offense because the offense inevitably involved the participation of more than one person.19 The Court pointed out that on prior occasions it had recognized that a person not encompassed within the class of people included in a statute defining an offense may be accountable and punished as a principal offender, but said, citing the Damen and Trumbley cases, that the statutes in those cases did not, "involve an offense which by its definition (emphasis added) required the action of more than one person."20

The Isaacs court also said:

We must distinguish penal statutes which by their terms define offenses which may be committed by act of a single participant, from penal statutes, such as section 4, which define offenses dependent upon acts of more than one person. With regard to the former type of penal statute, there may be accountability, but with regard to the latter type of penal statute, there can only be primary participation, and there is responsibility only when the latter type of penal statute specifically provides responsibility against all participants (emphasis added).21

Thus, the Isaacs court clearly indicated that the application of the inevitably incident conduct statute depends on the definition of the crime itself and not on how, in a particular case, the crime was committed and will necessarily have to be proved.

In an apparent attempt to distinguish Isaacs and justify ignoring Isaacs’ clearly stated definition-based rule for determining the applicability of the inevitably incident conduct statute, the Bohne court said that Isaacs involved an offense that could only be committed by more than one actor.22 The court then found that in the case before it, failing to file a Use Tax return, the offenses could be committed by an individual perpetrator, but because of the way the offenses were committed, the action of Bohne was required to commit the crime23 Thus, the Bohne court held that notwithstanding how an offense is defined, if it is committed in such a way that the defendant’s conduct was necessarily incident to its commission, the inevitably incident conduct statute bars prosecution.

The Isaacs court’s discussion of the Damen case, in connection with its analysis of the inevitably incident conduct statute, clearly indicates that the Bohne decision is built on a foundation of sand, and that when examining an offense that is defined such that it may be committed by an individual perpetrator, how the offense is committed in a particular case is irrelevant.

In Damen, the defendant was charged with the rape of his wife, an offense which can be committed by an individual perpetrator, but which at the time it was committed, Damen, as the victim’s husband, could only commit through the act of another.24 Thus, just as in Bohne, Damen involved an offense that was committed in such a way that an act of a particular defendant was inevitably incident to the commission of the charged offense. Nevertheless, in Isaacs the court said that the inevitably incident conduct statute did not apply in Damen because, as the offense in that case was defined, it could be committed by a single person. Thus, based on Isaacs and Damen, when a statute defines an offense such that it is capable of being committed by an individual perpetrator, the inevitably incident conduct statute does not apply, notwithstanding that it is committed in such a way that the act of a particular defendant is inevitably incident to its commission. Accordingly, in the Bohne case, where the offense is defined such that it is capable of being committed by an individual perpetrator, notwithstanding that as charged Bohne’s conduct was inevitably incident to the commission of the offenses, based on Isaacs and Damen, the inevitably incident conduct statute does not apply.

Interestingly, in State v. Duffy25, a case presenting the same issue as and decided just three months prior to Bohne, the Missouri Court of Appeals rejected the application of that state’s inevitably incident conduct statute. In the Duffy case, Duffy was the employer of an individual named Pannell who was injured while working. Following the injury, Duffy offered to pay Pannell one third of his normal wage if Pannell would work while he collected workers’ compensation benefits. Pannell accepted Duffy’s offer, returned to work, and also collected $1,114 in temporary total disability benefits. During the time Pannell was working and collecting benefits, he falsely represented to the insurance company that he had not returned to work. Duffy was charged as an accessory to the crime of workers’ compensation fraud and was convicted.26

On appeal, Duffy argued that he could not be convicted as an aider and abettor because his conduct was necessarily incident to Pannell’s commission of the crime and as such he was exempted from responsibility by §562.041.2(2) of the Missouri code,27 that state’s equivalent to our inevitably incident conduct statute.28 According to Duffy, Missouri’s necessarily incident conduct exception to aider and abettor accountability applied because the crime as charged could not have been committed without his involvement.

The Missouri Court of Appeals rejected Duffy’s argument, saying that Duffy misapplied the necessarily incident conduct exception.29 According to the court, the question was not whether, under the facts of the case, Duffy’s conduct was necessary to the commission of the offense, but was instead whether the crime of workers’ compensation fraud was so defined that the crime itself could not have been committed without the involvement of another. The court then held that since the crime of workers’ compensation fraud could be committed without the aid of another, the necessarily incident conduct exception to aider and abettor responsibility did not apply. 30 Thus, since failing to file a Use Tax return can be committed without the involvement of another, based on Duffy, the inevitably incident conduct statute should not apply in Bohne.

B. The Terms of the Statute Indicate that Applicability of the Inevitably Incident Conduct Exception is Determined By the Definition of the Offense

An examination of the inevitably incident conduct statute indicates that the determination of its applicability should be based on the definition of an offense and not on how, in any particular instance, that offense has been committed and will need to be proved at trial. The accountability provision of the Criminal Code provides that a person is legally accountable for the conduct of another when, either before or during the commission of an offense, with the intent to promote or facilitate its commission, a person aids or abets another in the commission of the offense.31 The inevitably incident conduct exception to this general rule of accountability provides that a person is not so accountable, unless the statute defining the offense provides otherwise, if "the offense is so defined (emphasis added) that his conduct was inevitably incident to its commission."32

Thus, the terms of the inevitably incident conduct statute itself state that for the statute to be applicable to an offense, the offense must be so defined that the aider’s conduct is inevitably incident to its commission. Accordingly, by the terms of the statute itself, the question is whether the offense is defined in such a way that the defendant’s conduct is inevitably incident to the commission of the crime, and not whether, in a particular case, the offense was committed in such a way that the defendant’s conduct was inevitably incident to its commission.

This conclusion is supported by the committee comments that accompany Section 5-2 of the Criminal Code. The committee comments discuss the accountability statute and say that Subsection (c)(1) and Subsection (c)(2) set forth certain principles that relieve a person of accountability under the criminal law.33 The comments discuss the exceptions contained in Subsection (c)(1) and Subsection (c)(2), and point out that Subsection (c)(1) applies to persons who are victims, such as the victim of a blackmail plot who pays over money.34 The comments then point out that Subsection (c)(2), the inevitably incident conduct statute, is designed for situations where a person does not fit comfortably into the category of "victim", and provide as example offenses bribery, prostitution, and abortion, all offenses which, by their very nature and definition, require at least two persons for their commission.35

As noted above, all of the offenses to which the committee comments say that Subsection (c)(2) is intended to apply require two persons for their violation. Significantly, however, the comments do not list any offenses that may be committed without the involvement of two or more persons, nor do they state that Subsection (c)(2) is intended to apply to such single actor offenses when they are committed in such a way that the action of another is inevitably incident to their commission. Considering the terms of the statute itself and the nature of the example offenses cited in the committee comments, had the statute been intended to apply to such definitionally unobvious situations, it would seem more than likely that the committee would have said so.

Even more importantly, had the intention of the legislature been to have the statute apply to the manner in which the offense was committed, it seems unlikely that the legislature would have used the phrase, "the offense is so defined." If the legislature intended the statute to apply to how offenses were committed, it is much more likely it would have instead used the phrase, as "the offense is so defined or committed." The fact that the legislature did not include the term "committed," the fact that the committee comments do not indicate an intention that the statute apply to how an offense is committed in a particular case, and the fact that the statute uses the phrase "is so defined," all strongly indicate that the legislative intent was that the statute be applied based on how an offense is defined and not on how, in a particular case, the offense was committed.

C. The Rule Determining Applicability of Wharton’s Rule Suggests That Application of the Inevitably Incident Conduct Statute Be Determined by Definition of the Offense

The statutorily created inevitably incident conduct exception to aiding and abetting accountability is virtually identical in concept to Wharton’s Rule in the law of conspiracy. Wharton’s Rule provides that an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the underlying crime is of such nature as to necessarily require the participation of two persons for its commission.36 Thus, conceptually, Wharton’s Rule is virtually identical to the inevitably incident conduct statute.

Wharton’s Rule is most frequently applied to offenses such as bigamy, bribery, fornication, and incest,37 offenses which, like those noted in the committee comments relating to Subsection (c)(2), by their nature and definition require the action of at least two persons for their commission. Finally, also like the inevitably incident conduct statute, Wharton’s Rule does not apply to substantive offenses, which may be committed by a single person acting alone.38 Thus, because Wharton’s Rule is conceptually identical to the inevitably incident conduct statute and applies to the same kinds of offenses, the test for determining the applicability of Wharton’s Rule provides a valuable guide for determining the applicability of the inevitably incident conduct statute.

The applicability of Wharton’s Rule is determined by the statutory elements of the substantive offense and not by the evidence used to prove those elements at trial.39 When the offense does not include, as an element, a multiplicity of actors, Wharton’s Rule does not apply.40 These two principles were well illustrated in United States v. Payan.41

In the Payan case, the defendant was convicted as an aider and abettor of transportation of stolen goods, and also was convicted of conspiracy to commit that offense.42 On appeal, Payan argued that Wharton’s Rule barred his conviction on the conspiracy charge. Payan pointed out that the government relied on the federal aider and abettor statute43 to convict him, and that aider and abettor responsibility requires the involvement of at least two persons. Payan also noted that the crime of conspiracy requires at least two persons and that the evidence at trial established that only he and one other person were involved in the conspiracy and the substantive offense. Based on this, Payan argued that Wharton’s Rule applied and barred his conviction on the conspiracy charge.44

The federal appeals court rejected Payan’s argument. In doing so, the court said that a Wharton inquiry should focus on the statutory elements of the substantive offense instead of on the evidence used to prove those elements at trial.45 The court then said that the statutory elements of transporting stolen goods do not include a multiplicity of actors because it is quite possible for one person to transport stolen goods.46 Finally, the court held that merely because the evidence adduced at trial may have focused on actions of two defendants in connection with transporting stolen property, that would not result in the application of Wharton’s Rule.47 Thus, the applicability of Wharton’s Rule is determined by how the substantive offense is defined and not by whether, in a particular case, the offense was committed in such a way that a multiplicity of actors was necessarily incident to its commission.

Though the viability of Wharton’s Rule is a matter of some doubt in Illinois,48 because of its nearly perfect conceptual likeness to the inevitably incident conduct statute, the method of analysis used to determine the applicability of Wharton’s Rule nonetheless provides valuable guidance in determining the applicability of the inevitably incident conduct statute. The applicability of Wharton’s Rule is determined by the elements of the particular offense and not by how those elements will be proved in a particular case, even when in a particular case the offense as charged necessarily required the action of multiple actors for its commission. Therefore, based on Payan, the applicability of the inevitably incident conduct statute should be determined by reference to the elements of an offense and not by how, in a particular instance, that offense was committed.

3. Conclusion

Based upon the Isaacs case, the Duffy decision, the terms of the inevitably incident conduct statute, and the test for determining the applicability of the conceptually identical Wharton Rule, the applicability of the inevitably incident conduct statute should be determined by reference to the definition of an offense and not by whether, in a particular case, that offense was committed in such a way that the defendant’s conduct was inevitably incident to its commission. Accordingly, if an offense is defined such that it can be committed by a single person, the inevitably incident conduct statute does not apply to it, even if, in a particular instance, the offense was committed in such a way that the defendant’s acts were necessarily incident to its commission.

In Bohne, the appellate court agreed that the offense of failing to file a Use Tax return could be committed by a single person, but held that in the case before it the defendant’s conduct was inevitably incident to the commission of the charged offenses. As shown above, the inevitably incident conduct statute should not be applied to an offense that is defined in such a way that it can be committed by a single person even when, in a particular case, that offense may have been committed in such a way that the defendant’s conduct was inevitably incident to its commission. Therefore, in Bohne, notwithstanding that, as the offenses were charged, Bohne’s action was necessarily incident to their commission, the inevitably incident conduct statute should not have been applied there. Therefore, it was error for the appellate court to so apply it and on that basis affirm the dismissal of the indictment against Bohne individually.49 

1The Illinois aider and abettor statute, found at 720 ILCS §5/5-2, provides in relevant part, "A person is legally accountable for the conduct of another when: (c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense.

2People v. Isaacs, 37 Ill.2d 205, 221-222 (1967); See, People v. Damen, 28 Ill.2d 464, 466 (1963); This is also consistent with federal law regarding aiders and abettors. See, Kaufman v. United States, 212 F 613, 617-618 (2nd Cir. 1914).

3People v. Trumbley, 252 Ill. 29, 34 (1911).

4See, Isaacs, 37 Ill.2d at 221-222; See, 720 ILCS §5/5-2(C).

5720 ILCS §5/5-2(c)(2). Accountability is imposed on aiders and abettors by 720 ILCS §5/5-2(C) which also provides that a person is not accountable as an aider unless the statute defining the offense so provides, if, "(2) The offense is so defined that his conduct was inevitably incident to its commission." 720 ILCS§5/5-2(C)(2).

637 Ill.2d 205 (1967).

7Isaacs, 37 Ill.2d at 222.

8312 Ill.App.3d 705 (1st Dist. 2000).

9People v. Bohne, 312 Ill.App.3d 705, 708 (1st Dist. 2000).

10Id. at 705.

11Id. at 706.

12Id.

13Id. at 708.

14Isaacs, 37 Ill.2d at 219-220.

15127 Ill.Rev. Stat., par. 67.

16The former name of the present Illinois Department of Revenue.

17Section 4 provided in relevant part as follows: "If any officer or employee of the Department of Finance shall, by himself or through others, corruptly collude or have any secret understanding with any person to defraud the State of Illinois, whereby the State shall sustain a loss, he shall, on conviction thereof, forfeit his office or employment and be imprisoned not less than one (1) or more than five (5) years . . ."

18Isaacs, 37 Ill.2d at 221.

19Id.

20Id. at 222.

21Id at 224-225. The Bohne court does quote the second sentence of this passage, but neither mentions nor addresses the highly significant sentence that precedes it. As seen above, in the first sentence, in discussing the inevitably incident conduct statute, our Supreme Court explicitly distinguishes between offenses based on their definition and twice uses the word "define."

22Bohne, 312 Ill. App.3d at 708.

23Id.

24As the victim’s husband, Damen could only commit the offense as an accessory. See, Damen 28 Ill.2d at 466.

258 S.W.2d 197 (Mo. App. Ct. W. Dist. 1999).

26Duffy, 8 S.W.2d at 199.

27Id. at 203

28With the exception of the fact that the Missouri statute uses the term "necessarily" the Missouri statute is otherwise identical in relevant part to our inevitably incident conduct statute. Compare, The Missouri statute provides that a person is not criminally responsible for the conduct of another when, "The offense is so defined that his conduct was necessarily incident to the commission (of) . . .the offense." Mo. Rev. Stat. §562.041.2(2) with our Illinois statute which imposes accountability on aiders and abettors, 720 ILCS §5/5-2(C), and provides that a person is not accountable as an aider unless the statute defining the offense so provides, if, "(2) The offense is so defined that his conduct was inevitably incident to its commission." 720 ILCS §5/5-2(C)(2). Note that both the Missouri and Illinois statutes use the phrase, "the offense is so defined."

29Id.

30Id.

31720 ILCS §5/5-2(c ).

32720 ILCS §5/5-2(C)(2).

33720 ILCS §5/5-2 Committee Comments

34Id.

35Id.

36Ianelli v. United States, 420 U.S. 770, 773 (1975); People v. Cooper, 239 Ill. App.3d 336, 352 (5th Dist. 1992).

37People v. Cooper, 239 Ill. App.3d at 352. It is interesting to note that Wharton’s Rule not only applies to the same kind of offenses as the inevitably incident conduct rule, but that at least one of the offenses to which courts say Wharton’s Rule applies, bribery, is one of the very offenses to which the committee comments say the inevitably incident conduct rule is intended to apply.

38Id.

39United States v. Payan, 992 F.2d 1387, 1390 (5th Cir. 1993).

40Id.

41992 F.2d 1387, 1390 (5th Cir. 1993).

42Id. at 1389.

4318 U.S.C. §2. The federal aider and abettor statute provides in relevant part, "Whoever commits an offense against the United States or aid, abets, counsels, commands, induces or procures its commission, is punishable as a principal. 18 U.S.C.§2(a).

44Payan, 992 F.2d at 1389-1390.

45Id. at 1390.

46The Court recognized that Payan improperly treated aiding and abetting as a target offense and decided the case treating, as it properly should have, transportation of stolen property as the target offense. See, Id.

47Id.

48People v. Laws, 155 Ill.2d 208, 211-212 (1993).

49The Bohne court sought to further justify its holding on the ground that, unlike with some other taxes, under the Use Tax Act the legislature had not specifically made corporate officers responsible for failure to file a tax return. Bohne, 312 Ill.App.3d at 709. This argument, however, misses the point because the issue in Bohne was not Bohne’s responsibility under the Use Tax Act itself, but his responsibility under Section 5/5-2(c) of the Criminal Code as an aider and abettor of the corporation. The legislature is deemed to know the interpretation of pertinent case law at the time a statute is enacted. See, Burell v. Souther Truss, 176 Ill.2d 171 (1997). The Use Tax was enacted in 1955. Illinois has had a statute that imposes responsibility on aiders and abettors since at least 1913, See, Jones & Addington, Ill. Stat. Annot., Ch. 38, Par. 3967 (1913) and, in 1913, our Supreme Court held that agents of a corporation who aid and abet it in committing an offense are accountable as principals for the corporatiion’s conduct, People v. Archibald, 258 Ill. 383 (1913). Even earlier than that the court had held that an aider who is legally incapable of committing an offense could be held accountable as a principal. See, People v. McCracken, 209 Ill. 215 (1904). Thus, more logically, given the existence of these longstanding principles of aider and abettor law, had the legislature intended to exclude officers of corporations from accountability as aiders and abettors under the Use Tax Act, it more likely would have affirmatively so stated in the criminal provisions of the Act. Just as logically, the legislature may not have specifically imposed accountability on corporate officers under the Use Tax Act because it reasonably believed corporate officers would be accountable under longstanding principles of aider and abettor law. People v. Parvin, 125 Ill.2d 519 (1988) does affect these conclusions because Parvin was decided under 720 ILCS §5/5-2(b) and did not address aider and abettor responsibility under 720 ILCS §5/5-2(c).

Edward C. Carter, III is an Assistant Illinois Attorney General and Supervisor of the Financial Crimes Prosecution of the Attorney General’s Office. Prior to supervising the Financial Crimes Unit, Mr. Carter was assigned to the Revenue Prosecution Unit of the Attorney General’s Office where he prosecuted various types of violations of the state’s revenue laws, including the largest Use Tax prosecution in Illinois history. Mr. Carter is a graduate of Illinois Institute of Technology/Chicago-Kent College of Law.


 
 
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