404.04	PARTIES:  DEFENDANT'S RESPONSIBILITY
		FOR CONDUCT OF ANOTHER PERSON
	A person is responsible for his own conduct and he is also responsible for the conduct of (another person) (other persons) in committing an offense if he acts with the other person(s) with the common purpose of committing that offense or if, for the purpose of committing that offense, he aids or encourages the other person(s) in committing it.
	(As to Count _____, if) (If) you find and believe from the evidence beyond a reasonable doubt:
First, that (on) (on or about) [date], in the State of Missouri, [Continue using the paragraphs from the MAI-CR 4th verdict director applicable to the offense and set out all the elements of the offense, ascribing the elements to the defendant or other person or persons with whom the defendant acted.  See Notes on Use 5 for suggestions on handling various types of situations. See Notes on Use 7(b) for handling murder in the first degree. Place a comma at the end of the last paragraph submitting the elements of the offense. Then add the following:] 
then you are instructed that the offense of [name of offense] has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
(Second) (Third) ([next numbered paragraph]), that with the purpose of promoting or furthering the commission of that [name of offense], the defendant [Insert basis for defendant's conduct being sufficient for being criminally responsible, using one of the following "(acted together with) (aided or encouraged) (acted together with or aided)." See Notes on Use 5 for the various options and when they should be used.  After the appropriate option(s), state the name(s) of other person(s) or, if unknown, a general identification of the other(s) involved, such as "another person," "other person(s)," etc.] in committing the offense, (and)
([next numbered paragraph], that [Continue in this and other paragraphs to deal with defenses as directed in MAI-CR 4th 404.11 and MAI-CR 4th 404.02.],)
then you will find the defendant guilty (under Count _____) of [name of offense] (, unless you find and believe [Continue with a reference to any affirmative defense applicable to the defendant and supported by the evidence. See MAI-CR 4th 404.11.]).
	However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense. [Omit this paragraph if an affirmative defense is submitted.]
	[If the MAI-CR 4th verdict director form for the offense contains mandatory definitions, insert those definitions here.]

Notes on Use
	1.	This is a revision of MAI-CR 3d 304.04 (9-1-03).  This revision is to the Notes on Use only.
	2.	This instruction provides for the modification of the ordinary verdict directing instruction for an offense to cover the situation where the liability of the defendant is dependent upon his being responsible for the conduct of another person by virtue of being an "aider and abettor."  See Sections 562.036 and 562.041, RSMo 2016.
	3.	The introductory paragraph beginning "A person is responsible..." will be included in all verdict directing instructions based on MAI-CR 4th 404.04, EXCEPT when all counts and verdict directing instructions submitted are based on accessorial liability and MAI-CR 4th 404.04 is used.  In that case, the introductory paragraph will be deleted from the verdict directing instructions and instead given as a separate instruction, which will be given immediately before the first verdict directing instruction.  It will not be repeated.  It will be given a number.
	See Notes on Use 8 for a modification of the opening paragraph when it is disputed whether the aid provided by the defendant occurred "before or during" the offense.
	4.	When to use MAI-CR 4th 404.04.  This instruction applies when the evidence shows that the defendant acted with or aided another person or persons in the commission of an offense.  See Notes on Use 9(a) for a discussion of problems that arise when the other person is not guilty of the offense.  Since MAI-CR 4th 404.04 involves imputing the conduct of another person to the defendant, it need not be used where the evidence shows that the defendant, by his own conduct, committed all the elements of the offense and there is evidence that another person was involved.  In such a case, the ordinary verdict directing instruction for the offense can be used requiring a finding that the defendant committed all the elements of the offense.  See Notes on Use 5(d).
	There are almost an infinite number of variations in factual situations of accessorial liability where the liability of the defendant is based on imputing to him the conduct of another person on the basis that the defendant provided aid to the other person.  However, the evidence in most cases will involve one of four situations.
	First, where the evidence shows the conduct of the offense was committed entirely by someone other than the defendant and the sole basis for defendant's liability is that he aided the other person or persons.
	Second, where the evidence shows that the defendant acted with another person or persons and they jointly committed the offense.
	Third, where the evidence is not clear or conflicts as to whether the defendant simply aided (and did not by his own acts commit any of the conduct elements of the offense) or acted jointly with another person or persons (and by his own acts committed some or all of the conduct elements of the offense).
	Fourth, where the evidence shows the conduct constituting the elements of the offense was committed solely by the defendant and there is also evidence showing someone aided or acted with the defendant.
	5.	How to modify the verdict directing instruction.  The ordinary verdict directing instruction for an offense requires for conviction that the jury find that "the defendant" committed all of the conduct elements of the offense and had the necessary culpable mental state.  In cases of accessorial liability, however, the conduct constituting the offense can be committed by someone other than the defendant and the defendant's liability will depend in part on imputing the conduct of another person to him.  The second portion of MAI-CR 4th 404.04 (after the introductory paragraph) will follow the ordinary verdict directing instruction for the offense in setting out the essential elements of the offense.  It must include in the numbered paragraphs all of these elements, including the culpable mental state.  However, it will be modified to attribute these elements to the other person or persons and the defendant as supported by the evidence.
	The paragraph following "then you are instructed that the offense ... has occurred" will submit the basis whereby the defendant is responsible for the conduct of another person.  The options for describing the defendant accomplice's conduct include "acted together with," "aided or encouraged," "acted together with or aided."
	In State v. Puig, 37 S.W.3d 373, (Mo. App. 2001) the court interpreted "acted together with" to include only conduct that constitutes an element of the offense and held that when the phrase is used with "or aided" there must be evidence to support conduct by the defendant accomplice that is an element of the offense as well as evidence of conduct of assisting.
	(a)	Where the conduct elements are committed entirely by another person or persons.  
	Where the evidence shows the conduct elements of the offense were committed entirely by someone other than the defendant and the sole basis for defendant's liability is his aiding the other person or persons (as where the defendant is not present but planned the offense, or where the defendant is the lookout or driver of the getaway car in a robbery or burglary), the defendant will usually be charged with the same offense and the same degree of the offense as the other person.  In such cases,
	(1) all of the elements of the offense, including the culpable mental state, should be ascribed to the other person or persons and not to the defendant, and 
	(2) select the alternative "aided or encouraged" in the paragraph following "then you are instructed that the offense of [name of offense] has occurred...."
	See Notes on Use 6 and 7(c) for a discussion on how to deal with situations where the offense is divided into degrees and it is contended that the defendant is guilty of a higher degree than the other person.
	Care must be taken in those cases where the liability of the defendant is based solely on his being criminally responsible for the conduct of another that the instruction requires a finding of the commission of the offense by the other person.  This may require, in setting out the elements of the offense, that matters of defense that would exculpate the other person be included.  For example, if the offense is stealing and there is evidence that the other person acted under a claim of right, the possibility of the other person not having the culpable mental state needed for the offense must be included.  See MAI-CR 4th 424.02.1; State v. Quisenberry, 639 S.W.2d 579, 584 (Mo. banc 1982).  See also State v. Lute, 608 S.W.2d 381 (Mo. banc 1980).
	(b)	Where the defendant and other person(s) are joint actors in the commission of the offense.
	Where the evidence shows the defendant and another person or persons jointly committed the conduct of the offense, then,
	(1) all the elements of the offense should be ascribed respectively, as supported by the evidence, to (A) the defendant, (B) the defendant and the other person or persons, (C) the defendant or the other person or persons, or (D) the other person or persons, and 
	(2) select one of the alternatives such as "acted together with" in the paragraph following "then you are instructed that the offense of [name of offense] has occurred...."
	In ascribing the elements of the offense to defendant and the other person or persons, be sure there is evidence supporting the particular ascriptions.
	(c)	Where it is not clear whether the conduct elements were committed by the defendant or another person.
	Where the evidence is not clear or conflicts as to which person (in a group including the defendant) engaged in the conduct constituting the offense, then
	(1) those conduct elements of the offense should be ascribed to the defendant or the other person or persons, and
	(2) select one of the alternatives such as "acted together with or aided" in the paragraph following "then you are instructed that the offense of [name of offense] has occurred...."
	This method of submission will apply in such cases where it is not clear whether the defendant acted alone or had an accomplice as where the defendant is found in possession of stolen items in the vicinity of a recently burglarized store but it is not clear whether he alone committed the burglary or was acting with another person or persons.  Modify the instruction by using "acted alone or acted together with or aided" in the paragraph following "then you are instructed that the offense of [name of offense] has occurred...."
	(d)	Where the defendant is personally responsible for all the elements of the offense and another person was involved.
	Where the evidence shows the conduct constituting the elements of the offense was committed solely by the defendant and there is also evidence that someone aided the defendant, there is no need to use MAI-CR 4th 404.04 because the ordinary verdict directing instruction for the offense is sufficient to submit the defendant's liability.  However, MAI-CR 4th 404.04 can be adapted to cover this situation, but using it puts an additional and unnecessary burden on the prosecution.  If the prosecution wishes to submit such a case using MAI-CR 4th 404.04, then
	(1) all the elements of the offense should be ascribed to the defendant, and 
	(2) the paragraph following "then you are instructed that the offense of [name of offense] has occurred...." should be modified to read:
(Second) (Third) ([next numbered paragraph]), that defendant acted (alone or) with the aid of [name(s) of other person(s) or, if unknown, a general identification of the other(s) involved, such as "another person," "other person(s)," etc.] in committing that offense.
This variation should NOT be used unless the prosecution requests it; and, in a trial of two or more defendants, then the modified paragraph must state "that defendant acted alone or with the aid of...." State v. Washington, 901 S.W.2d 276 (Mo. App. 1995); State v. Tate, 658 S.W.2d 940 (Mo. App. 1983).
	6.	Conviction of a higher degree.  In most instances where the defendant's criminal liability is based solely on the conduct of another person, the defendant will be charged with the same degree of the offense as the other person and MAI-CR 4th 404.04 will require a finding that the other person has committed all the elements of that degree of the offense, including the required culpable mental state.  However, when an offense is divided into degrees, it is possible for the defendant accessory to be guilty of a higher degree than the other person.  See Section 562.051, RSMo 2016, and State v. Ervin, 835 S.W.2d 905, 923 (Mo. banc 1992).  In such a case, the paragraphs alleging the commission of the offense by the other person need include (in addition to the conduct elements) only the culpable mental state needed for a conviction of the lowest degree of the offense.  However, the culpable mental state needed to aggravate the offense to a higher degree for the defendant then must be attributed to the defendant in the paragraphs following "then you are instructed that the offense of [name of offense] has occurred...."  This type of situation will arise most often with regard to the homicide offenses.  See Notes on Use 7(c).
	7.	Special problems with homicide offenses.
	(a)	Murder in the second degree:  felony.  
	This instruction can be used with murder in the second degree-felony but only as to the submission of the underlying felony.  For discussion of this in submitting felony-murder, see Notes on Use 6 to MAI-CR 4th 414.06.
	(b)	Murder in the first degree. 
	A special problem can arise when using MAI-CR 4th 404.04 to submit murder in the first degree.  In order to be guilty of an offense based upon the conduct of another, the accessory must have both the purpose to aid the commission of an offense and whatever culpable mental state is required for the offense.  Except in certain situations involving murder in the first degree, when a defendant has the purpose to aid the commission of a particular offense, he will also have the mental state needed for that offense.  For example, murder usually requires "knowingly" killing the victim.  One cannot have the purpose to promote murder by aiding another person unless one knows the other person intends to kill; thus, the purpose to aid will include the mental state needed for murder.  However, murder in the first degree requires "deliberation" - a mental state not found in any other offense.  It is possible for the accessory to have the purpose to promote a murder by aiding another person without necessarily having "deliberated."  To make it clear that to be guilty of murder in the first degree the defendant must have deliberated, the verdict director must require a finding of that element.
	The ordinary verdict director for murder in the first degree, MAI-CR 4th 414.02, provides for this in the third paragraph, which states:
Third, that defendant did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief,
	If in using MAI-CR 4th 404.04 in setting out the essential elements of the offense this element is ascribed to the defendant alone or to the defendant and the other person or persons, the requirement of finding the defendant "deliberated" is satisfied.  If, however, in the first listing of the elements, the element of deliberation is not so ascribed to the defendant (as would be the case where the defendant did not perform any conduct that caused the death and the defendant's liability is based solely on his aiding the person who caused the death), or if the element of deliberation is ascribed to "the defendant or another person," then the ascription of deliberation to the defendant should be accomplished by modifying the paragraph following "then you are instructed that the offense of [name of offense] has occurred...." to read as follows:
(Second) (Third) ([next numbered paragraph]), that with the purpose of promoting or furthering the death of [name of victim], the defendant aided or encouraged [name(s) of other person(s) involved or, if unknown, a general identification of the other(s) involved, such as "another person," "other person(s)," etc.] in causing the death of [name of victim] and did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief,
Such a modification makes clear that the jury must find that the defendant did deliberate.  State v. O'Brien, 857 S.W.2d 212 (Mo. banc 1993).  It also allows for a converse. 
	(c)	Liability for a higher degree of criminal homicide than the other person.
	In homicide cases, it is possible for the accessory to be guilty of a higher degree than the other person.  See Section 562.051, RSMo 2016; State v. Ervin, 835 S.W.2d 905, 923 (Mo. banc 1992).  An accessory could be guilty of murder in the first degree even though the person who did the act of killing is only guilty of murder in the second degree or manslaughter.  This could occur if the other person acted on the spur of the moment under the influence of sudden passion, while the defendant who provided the aid or encouragement acted after deliberation.  In cases where the evidence is such that the jury could find that the defendant is guilty of a higher degree, the initial paragraphs of the verdict directing instruction attributing the commission of the offense to the other person will require a finding of the culpable mental state for the appropriate lower degree of the offense.  The phrase beginning "then you are instructed" should be modified to name the offense without reference to degree, such as "criminal homicide."  The next paragraph should be modified to require a finding that the defendant had the necessary culpable mental state for the higher degree.
	For example, in a prosecution where the evidence is such that the jury could find that the person who did the act of killing is guilty only of murder in the second degree but could also find that the defendant accessory acted with deliberation, the jury would be instructed to find that the other person caused the death and did so "knowingly."  The instruction would continue:
then you are instructed that a (murder) (criminal homicide) has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
(Second) (Third) ([next numbered paragraph]), that with the purpose of promoting or furthering the death of [name of victim], the defendant aided or encouraged [name(s) of other person(s) involved, or if unknown, a general identification of the other(s) involved, such as "another person," "other person(s)," etc.] in causing the death of [name of victim] and did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief,
then you will find the defendant guilty (under Count____) of murder in the first degree.
	The definition of "deliberation" is included because that is the usual method of submitting that element and the prior paragraphs have not submitted deliberation.
	8.	For accessory liability, the assistance or encouragement by the defendant must occur before or during the commission of the offense.  In cases where, in addition to evidence of the defendant's assisting or encouraging before or during the offense, there is evidence of assistance or encouragement occurring after the offense has been completed, and the defendant contends that the only aid, if any, provided by the defendant occurred after the offense was completed, then, on request of the defendant, the opening paragraph of this instruction will be modified to read as follows:
	A person is responsible for his own conduct and he is also responsible for the conduct of (another person) (other persons) in committing an offense if, before or during the commission of an offense, he acts with the other person(s) with the common purpose of committing that offense or if, before or during the commission of an offense, for the purpose of committing that offense, he aids or encourages the other person(s) in committing it.  The commission of an offense includes immediate flight therefrom.
	9.	Situations NOT covered by MAI-CR 4th 404.04.
	(a)	Where the other person is not guilty.  
	This format of MAI-CR 4th 404.04 covers only those situations where the defendant is to be held responsible for the conduct of another person and that other person is also guilty of the offense.  This format does NOT apply to situations where the defendant is being held responsible for the conduct of another person and that other person is not guilty because the other person lacks the required culpable mental state for any degree of the offense--as can occur where the defendant commits an offense by the use of an "innocent agent."  For example, if the defendant were to have a package containing a bomb delivered to the victim by a person who had no knowledge of the contents or any culpable mental state as to causing death, and the bomb after being delivered exploded and killed the victim, the defendant's liability should be submitted by using the ordinary verdict directing instruction setting out that the defendant "caused" the death by having the bomb delivered.
	(b)	Liability for uncontemplated offenses.  
	MAI-CR 4th 404.04 is not designed to submit the criminal responsibility of a defendant for an offense committed by another person when the defendant neither participated in nor contemplated the commission of such offense.  For example, if the defendant drove the car for the purpose of assisting his companion to commit a robbery and his companion in addition committed a rape, this instruction does not deal with the issue of the liability, if any, of the defendant for the rape. The basis for and extent of such responsibility under pre-code law was not clear.  See State v. Sneed, 549 S.W.2d 105 (Mo. App. 1977).
	The basis for and the extent of such responsibility, if any, may be found in Sections 562.036, 562.041, and 562.046, RSMo 2016.  The basis and extent of such responsibility and the instructions for submitting the same must be developed on a case-by-case basis.  See State v. Willyard, 776 S.W.2d 859 (Mo. App. 1989), and State v. Clay, 748 S.W.2d 44 (Mo. App. 1988), where the evidence was found sufficient for liability of the "other offense."
	10.	Modification for Abandonment.  Section 562.041.2(3), RSMo 2016, provides for abandonment as a defense to criminal responsibility for the conduct of another person. It provides:

	"[A] person is not so responsible if ... [b]efore the commission of the offense he abandons his purpose and gives timely warning to law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense." 

This is an affirmative defense.  If there is evidence to support it, then on the court's own motion or upon written request in proper form by the state or the defendant, the verdict director will be modified so that the paragraph that begins "then you will find the defendant guilty..." will read as follows:
then you will find the defendant guilty (under Count      ) of [name of offense], unless you find and believe that the defendant is not guilty by reason of abandonment.  If you find and believe from the evidence that it is more probably true than not true that before the commission of [name of offense], the defendant abandoned his purpose of promoting or furthering the commission of that offense and gave timely warning to law enforcement officers or otherwise made reasonable efforts to prevent the commission of that offense you must find the defendant not guilty of that offense.
If this modification is made, the paragraph beginning "However, ..." will be omitted.
	11.	Situations involving accessory liability may also involve the giving of an instruction on "mere presence."  See MAI-CR 4th 410.08.
	12.	When two or more persons are involved in the commission of an offense and included offenses are submitted, MAI-CR 4th 410.20 may be given.
	13.	Definitions.
	MANDATORY:  If the ordinary verdict director form for the offense contains mandatory definitions, those definitions must be included in this instruction. Such will be inserted after the "However" clause and before the paragraph on punishment. 
	OPTIONAL:  Any optional definition that could be given with the ordinary verdict director for the offense may be given.