**Criminal Liability: Transferred and**

**Concurrent Intent**

[Lieutenant Colonel LeEllen Coacher\* and]{.smallcaps}

[Captain Libby Gallo\*\*]{.smallcaps}

**I. INTRODUCTION**

A disgruntled military member comes into the base legal office, looking
for his estranged wife. She is a witness in a pending court-martial
against him. He finds her, shoots and kills her. He goes in search of
another target, his aunt. He finds her in the trial counsel's office. He
shoots at the trial counsel, intending to kill him, but trial counsel's
quick dive behind his desk saves his life. The member then shoots at his
aunt, intending to kill her as she huddles behind the door with her
husband, who struggles to keep the office door from opening wide enough
to let the member in. The member fires his weapon at them, trying to hit
the couple through the 18 inch crack in the door. Fortunately for the
aunt and her husband, he never really aims the weapon and after several
attempted shots, the weapon jams. The member escapes, but is later
caught. He is charged with, among other offenses, murder and three
specifications of attempted murder; one for the attempt on trial
counsel, one for the attempt on the aunt, and one for the attempt on the
aunt's husband.[^1]

Murder may be committed by someone who has a specific intent to kill,
whether that specific intent to kill was premeditated or not.[^2] Murder
may also be committed by someone with no specific intent to kill, but
who acts in a way which is inherently dangerous to others.[^3] Attempted
murder, because it is an attempt, always requires proof of a specific
intent to kill.[^4] In the scenario above, the member intended to kill
his aunt, but did not intend to kill her husband. The husband just
happened to be hiding behind the office door with his wife. Where is
trial counsel's proof of the specific intent to kill the aunt's husband?

The answer lies in a legal fiction. As with any legal fiction, the idea
is to permit prosecution, and conviction, of a person for what he or she
intended to do. A fortuitous circumstance should not benefit a wrongdoer
who was prevented from accomplishing his or her intended wrong. This is
only fair. [^5]

Many offenses require a specific intent to do some wrongful act.[^6]
Even if the underlying crime does not require proof of a specific
intent, proving an attempt to commit a crime requires proof of a
specific intent on the part of the wrongdoer.[^7] This article looks at
two theories of criminal liability; transferred and concurrent intent.
These two theories are, in essence, legal fictions created to allow
punishment for criminal culpability when an otherwise guilty party would
escape punishment for his wrongful actions. This article also explores
the differences between transferred and concurrent intent and offers
practical suggestions for use of these theories.

**II. TRANSFERRED INTENT**

Criminal acts require a particular mental state or *mens rea*.[^8] As
Justice Jackson, speaking for the Court in *Morissette v. United
States*, observed:

The contention that an injury can amount to a crime only when inflicted
by intention is no provincial or transient notion. It is as universal
and persistent in mature systems of law as belief in freedom of the
human will and a consequent ability and duty of the normal individual to
choose between good and evil. A relation between some mental element and
punishment for a harmful act is almost as instinctive as the child\'s
familiar exculpatory \'But I didn\'t mean to,\' and has afforded the
rational basis for a tardy and unfinished substitution of deterrence and
reformation in place of retaliation and vengeance as the motivation for
public prosecution. Unqualified acceptance of this doctrine by English
common law in the Eighteenth Century was indicated by Blackstone\'s
sweeping statement that to constitute any crime there must first be a
\'vicious will.\'\"[^9]

The mental element of a crime, the *mens rea*, may exist in varying
degrees. A wrongdoer may specifically intend to commit a crime, or may
engage in reckless misconduct resulting in criminal actions, or the
wrongdoer's negligent misconduct may be criminally culpable.[^10]
Without evidence of some degree of *mens rea*, proof of, and conviction
for, the criminal act charged would be impossible. There are, however,
instances when a wrongdoer has an intent to commit a criminal act, but
that intent is not effectuated. For example, a wrongdoer may intend to
kill or harm a specific person, but instead harms or kills a different,
unintended person. "The question of criminal liability when there has
been an injury or killing of an unintended victim has bedeviled the
commentators and the courts."[^11] In some instances, the doctrine of
transferred intent is applied to hold the wrongdoer criminally liable
for his actions in killing or injuring the unintended victim.

"The common law doctrine of transferred intent was applied in England as
early as the 16^th^ century . . . and became part of common law in many
American jurisdictions . . . . "[^12] The doctrine of transferred intent
exists when "a defendant, who intends to kill one person but instead
kills a bystander, is deemed the author for whatever kind of homicide
would have been committed had he killed the intended victim."[^13] The
legal fiction of transferred intent−transferring a wrongdoer's intent to
kill one person to prove an intentional crime against another person−is
necessary to avoid an otherwise unjust result.[^14] Without being able
to use the wrongdoer's specific intent to kill one person to punish the
actual killing of an unintended victim, the wrongdoer would not be
punished for his specific intent crime.[^15]

There is a sound policy reason for allowing the wrongdoer's intent to be
transferred to prove the crime which actually occurred. The Supreme
Court of California described the policy as:

Under such circumstances the accused is deemed as culpable, and society
is harmed as much, as if the defendant has accomplished what he had
initially intended, and justice is achieved by punishing the defendant
for a crime of the same seriousness as the one he tried to commit
against his intended victim.[^16]

An application of the doctrine of transferred intent thus allows an
accused to be prosecuted for his wrongful actions just as if the
intended victim had been harmed. "In effect, transferred intent makes a
whole crime out of two component halves."[^17]

The legal fiction behind transferred intent is easily rationalized in
situations involving "bad aim," such as the classic example: A shoots at
B with the intent to kill B, but misses B and hits C resulting in C's
death.[^18] In this classic "bad aim" scenario, A could be convicted of
attempting to kill B, but could not be convicted of the intentional
death of C, without using the doctrine of transferred intent.
Application of the fiction of transferred intent is necessary to hold A
accountable for what A set out to do; intentionally kill another human
being. The doctrine of transferred intent becomes more difficult to
apply when C is not injured, or does not die.[^19] Both courts and
commentators have split on whether transferred intent can properly be
applied in these situations.[^20]

The more persuasive weight of authority holds that "when the intent
being transferred is for the same type of harm"[^21] a wrongdoer's
intent may be transferred, regardless of whether the intended crime
could be charged or not.[^22] These courts hold that intent is not a
finite commodity, that once used to prove one crime cannot be used again
to prove the commission of another. These courts allow prosecution for
all natural and probable results of the wrongdoer's intended act. For
example, transferred intent has been applied in situations where a
single bullet, aimed at one person, strikes and passes through the
intended victim, then strikes and kills an unintended victim.[^23]

On the other hand, jurisdictions such as California and Maryland
question whether intent can be transferred when the wrongdoer can be
held accountable for the crime he intended to commit without resorting
to the use of a legal fiction.[^24] For example, in *California v.
Czahara,*[^25] the First Appellate District of the California Court of
Appeals discussed the use of transferred intent to convict for attempted
murder of an unintended victim. The defendant, Czahara, fired at least
two shots through a window of a car from a distance of five or six feet,
in order to kill his estranged girlfriend. The ex-girlfriend, who was
driving the car, and her passenger, were both seriously injured. Czahara
was convicted of attempting to murder both victims.

On appeal, Czahara challenged his conviction for attempting to murder
the passenger, claiming the trial judge erred when he instructed the
jury that his specific intent to kill his ex-girlfriend could be
transferred to convict for attempted murder of the passenger, because
his intended victim was injured in the attempt. The California Court of
Appeals reversed Czahara's conviction for attempting to murder the
passenger, holding:

The purpose of the transferred intent rule−to insure that prosecution
and punishment accord with culpability−would not be served by convicting
a defendant of two or more attempted murders for a single act by which
he intended to kill only one person. In *People v. Birreuta*, . . . the
court noted that there is a difference in culpability between an
assailant who deliberately sets out to kill one person and in addition
kills another accidentally, and one who deliberately kills two victims.
Application of the transferred intent rule to the former would wipe out
that distinction. Similarly, the attacker who shoots at two or more
victims, with the intent of killing all, is more culpable than the one
who aims at a single individual, even when the latter also injures a
bystander. In the circumstances of this case, the transferred intent
instruction obscured that difference.[^26]

The California Appeals court determined there was "no need to employ the
legal fiction of transferred intent" to hold Czahara accountable for
attempted murder of the passenger.[^27]

When applying the theory of transferred intent, the Maryland courts have
also made a clear distinction between cases in which the unintended
victim dies and cases in which the unintended victim does not die.[^28]
The Maryland courts struggled with the complexity of applying such a
theory to "inchoate criminal \[acts\] such as assault with the intent to
murder, attempted murder and attempted voluntary manslaughter."[^29]
Ultimately, Maryland courts concluded that "the doctrine of transferred
intent does not apply to attempted murder . . . ."[^30]

It is this minority analysis of transferred intent that creates the need
for an additional theory of criminal liability in order to hold those
wrongdoers who harm multiple victims through one act of violence
accountable for the harm done to all the victims injured by the wrongful
act. The Maryland court in *Ford v. State*[^31] recognized this need
even while refusing to extend the theory of transferred intent when the
wrongdoer could be held accountable for death or injury to the intended
victim.[^32]

There is also the need for a different theory of criminal liability when
there is no proof the wrongdoer specifically intended to kill, yet is
charged with attempted murder. To transfer intent there must be proof
that the wrongdoer intended to kill.[^33] As an example, under the
Uniform Code of Military Justice, a servicemember may commit murder in
violation of Article 118 in four different ways. The member may murder
with a premeditated design to kill,[^34] an unpremeditated intent to
kill or inflict great bodily harm,[^35] by engaging in an act inherently
dangerous to another and which demonstrates a wanton disregard for human
life,[^36] or if a death occurs during the course of certain specified
felonies.[^37] Only premeditated and unpremeditated murder require proof
of a specific intent to kill.[^38] Since attempted murder is an attempt
under Article 80 of the Uniform Code of Military Justice, attempted
murder requires proof of a *specific* intent to kill.[^39]

Although a serviceperson may be convicted of murder if he commits
homicide without an intent to kill, but with an intent to "inflict great
bodily harm," *see* Article 118(2), or while "engaged in an act which is
inherently dangerous to others and evinces a wanton disregard of human
life," *see* Article 118(3), these states of mind do not suffice to
establish attempted murder.[^40]

Consequently, transferred intent can not be used to prove murder of an
unintended victim when the murder was committed by engaging in an act
inherently dangerous, because there is no specific intent to kill. Since
attempted murder requires a specific intent to kill, some courts have
held that the doctrine of transferred intent cannot be used to prove
attempted murder.[^41] When there is a question of the applicability of
transferred intent, there is a need to rely, instead, on the similar,
but distinct, theory of concurrent intent.

**III. CONCURRENT INTENT**

Concurrent intent is similar to transferred intent in that it is a legal
fiction used to convict a wrongdoer for the natural and probable
consequences of his actions.[^42] Nevertheless, concurrent intent is
distinct from the theory of transferred intent. Transferred intent
involves *unanticipated* consequences to an *unintended* victim.[^43]
Concurrent intent involves *anticipated* results to an *intended*
primary victim, with coexisting *anticipated* results to *secondary*
victims.[^44] Proof that the secondary victims were in the "killing
zone" established by the wrongdoer's method of attacking the primary
victim is circumstantial evidence of the wrongdoer's concurrent intent
to harm all the victims.[^45]

An example of concurrent intent is when a wrongdoer throws a grenade
into a room intending to kill A, knowing B, C, and D are in the same
room. Even though the wrongdoer's motive, and primary interest, was
killing only A, the wrongdoer has demonstrated the requisite intent to
kill B, C, and D by his use of a grenade that would kill everyone in the
room. Similarly, when a terrorist places a bomb on an airplane,
intending to kill the diplomat in first class, the terrorist knows the
bomb's explosion will cause the airplane to fall from the sky and kill
everyone on board. The terrorist has a concurrent intent to kill
everyone on the airplane.

Transferred intent is different. Transferred intent applies when a
wrongdoer shoots at A with an intent to kill A, misses A, but hits and
kills a passerby, B. The wrongdoer can be prosecuted for the intentional
death of B, even though the wrongdoer did not know B would be anywhere
near A at the time of the shooting.

Concurrent intent, the idea that a person may have more than one intent
during a single event, is not a novel theory of law. Courts have long
recognized that it is possible for a wrongdoer to intend two different
crimes at the same time. For example, a wrongdoer may intend to commit
one crime, such as robbery, and have an additional or concurrent intent
to commit another crime at the same time, such as an aggravated
assault.[^46] As the Illinois Supreme Court said in *State v. Murff*,
"The existence of a concurrent intent to both kill and rob is not
uncommon in . . . patterns of criminal conduct."[^47]

Although the concept that a wrongdoer could have concurrent intent to
commit different types of criminal acts at the same time has been a part
of American jurisprudence for some time, the Maryland Supreme court in
*Ford v. State*[^48] applied the concept of concurrent intent to crimes
involving multiple deaths from one act, or multiple victims of a single
assaultive offense. Ford was charged on a 90 count indictment, with
charges ranging from assault with the intent to murder to malicious
destruction of property. The charges resulted from an incident where
Ford, along with three other youths, stood along the Capitol Beltway
near Washington D.C. and threw "large landscaping rocks"[^49] at rush
hour traffic. The rocks hit between 15 and 40 cars, causing both
property damage and injury to the occupants.

The most severely injured person suffered a skull fracture and would
have died but for the immediate medical treatment she received. However,
because of the skull fracture, the victim received permanent brain
damage. A passenger in another car suffered a broken jaw and permanent
hearing loss in one ear. Others received only minor cuts from broken
windshield glass. Ford explained that he and his friends threw the rocks
while they were drunk, and that they did not intend to hurt anyone.

At trial, the judge instructed the jury that if they believed Ford threw
the rocks with the intent to maim the vehicle's *drivers*, the jury
could use the doctrine of *transferred* intent to convict Ford of
assault with the intent to maim certain named *passengers* in those
vehicles.[^50] Although the appellate court declined to specifically
rule on the applicability of that instruction to Ford's case, it
discussed the doctrine of transferred intent at length, concluding that
transferred intent is inapplicable to assault with the intent to disable
and other related crimes when the defendant could be tried for the crime
he intended to commit, as in this case.[^51] The court explained,

The underlying rationale for the doctrine \[of transferred intent\] . .
. suggests that transferred intent should apply only when, without the
doctrine, the defendant could not be convicted of the crime at issue
because the mental and physical elements do not concur as to either the
intended or the actual victim . . . . Thus, transferred intent makes a
whole crime out of two halves by joining the intent as to one victim
with the harm caused to another victim. Transferred intent does not make
two crimes out of one. Where the crime intended has actually been
committed against the intended victim, transferred intent is unnecessary
and should not be applied to acts against unintended victims.[^52]

The court went on to discuss an earlier transferred intent case, *State
v. Wilson,*[^53] in which the court applied transferred intent to
attempted murder. In the *Ford* case, the court questioned the reliance
on transferred intent to affirm the conviction in *Wilson* because "the
purpose of transferred intent is not to multiply criminal liability, but
to prevent a defendant, who has committed all the elements of a crime
(albeit not upon the same victim), from escaping responsibility for that
crime."[^54] Even though the court questioned the rationale for the
*Wilson* decision, the *Ford* court justified the result in *Wilson* by
finding "the convictions \[in *Wilson*\] could have been properly upheld
on the basis of . . . concurrent intent,"[^55] drawing a clear
distinction between the two theories.

The *Ford* court explained that instead of transferring intent from an
intended victim to an unintended victim, when a defendant

intentionally creates a "kill zone" to ensure the death of his primary
victim, \[then\] the trier of fact may reasonably infer from the method
employed an intent to kill others *concurrent* with the intent to kill
the primary victim. When the defendant escalated his mode of attack from
a singe bullet aimed at A's head to a hail of bullets or an explosive
device, the factfinder can infer that, whether or not the defendant
succeeded in killing A, the defendant concurrently intended to kill
everyone in A's immediate vicinity to ensure A's death. The defendant's
intent need not be transferred from A to B, because although the
defendant's goal was to kill A, his intent to kill B was also direct; it
was *concurrent* with his intent to kill A. Where the means employed to
commit the crime against a primary victim create\[s\] a zone of harm
around that victim, the factfinder can reasonably infer that the
defendant intended that harm to all who are in the anticipated
zone.[^56]

Thus, the *Ford* court concluded the *Wilson* decision reached the right
result, but used the wrong analysis.

Other cases have also used an analysis of intent similar to that found
in the *Ford* discussion of concurrent and transferred intent. In most
cases, although the term "concurrent intent" may not have been used, or
the analytical process shoehorned into the label of "transferred
intent," the analysis of the intent is the same analysis of concurrent
intent found in the *Ford* decision. In *Al Qaadir v. Gallegos*[^57] the
Ninth Circuit Court of Appeals refused to consider whether a transferred
intent instruction given in a murder case violated the defendant's due
process. There, the defendant was involved in an incident where several
assailants sought to kill a person named Jackson. They shot at Jackson
and then riddled the truck in which he was riding with bullets to ensure
the absence of witnesses to their crime. Jackson and three others were
shot multiple times. Multiple bullet casings were found at the scene.
The court found any potential error in giving the transferred intent
instruction was harmless, because there was sufficient evidence
presented at trial to show an intent to kill all the victims charged,
without resorting to transferred intent. The court said, "Such
thoroughness suggests an intent to kill all occupants of the
vehicle."[^58]

Concurrent intent, as clarified in *Ford*, has been applied in at least
two other cases, *Ruffin v. United States*[^59] and *United States v.
Willis*.[^60] In *Ruffin*, the defendant and four others, all carrying
firearms, stopped their vehicle at a stoplight next to a car driven by
George Younger. The defendant and his cohorts had an ongoing dispute
with Younger, and they sought to resolve the dispute by shooting him as
he sat in his car. They fired 10 to 15 shots at Younger, wounding him.
During the shooting, Marcia Williams, who was driving her car in the
vicinity, was killed when one of the rounds fired at Younger hit her in
the head. One of Williams' children, riding in the passenger seat of her
car, was also wounded.

Ruffin challenged his conviction for assault with the intent to kill
while armed for the injury to the Williams child, arguing that the trial
court improperly allowed the jury to transfer his intent to harm Younger
to prove an intent to kill the child, even though the assault with the
intent to kill while armed charge against Younger was complete. The
District of Columbia court disagreed, and found the act of spraying a
car with a hail of bullets while the car was stopped at a light
permitted finding the defendant had a concurrent intent to kill everyone
in the path of the bullets.[^61]

The Court of Appeals for the Armed Forces has also applied concurrent
intent to uphold an attempted murder conviction. In *United States v.
Willis*,[^62] the accused plead guilty to three specifications of
attempted murder, among other offenses. During the guilty plea inquiry,
the accused told the military judge that he headed towards an office
where he intended to kill his aunt. He knew she was in the office with
two other people, her husband and an attorney. Upon reaching the office,
he found the door would only open about 6 inches; and he could only see
the attorney. The accused told the military judge that when he saw the
attorney, he decided to kill him, and fired a shot at the him, but
missed. The accused then tried to fire his weapon at his aunt and her
husband by pointing his weapon at the area behind the door, which the
husband was trying to keep closed over the accused's arm, and pulling
the trigger multiple times. He was unsuccessful in harming them because
the weapon jammed. The accused admitted that he intended to kill the
attorney and his aunt. While acknowledging that he probably would have
shot his aunt's husband under the circumstances, he denied ever having
an intent to kill the husband.

On appeal, the accused challenged the providency of his guilty plea to
the attempted murder of his aunt's husband, arguing that attempted
murder requires specific intent to kill, which could not be proven by
transferred intent when the crime against the intended victim, here the
attempted murder of the aunt, was complete. The United States Court of
Appeals for the Armed Forces found the accused's plea provident, holding
that when there is "an intent to kill and an act designed to bring about
the desired killing, the defendant is responsible for all natural and
probable consequences of \[his\] act, regardless of the intended
victim."[^63] The court applied the theory of concurrent intent to hold
that there was sufficient evidence to find the accused had the specific
intent to kill his aunt's husband in order to achieve his goal of
killing his aunt. The court stated:

Under a concurrent-intent approach, we infer the intent when the result
was the same as that intended or at least a natural and probable
consequence of the intended result. As long as the defendant has the
requisite intent for the intended crime, the defendant will be
responsible for the natural and probable consequences of the act.

Appellant's admitted actions are sufficient to establish that he had the
concurrent intent to kill both his aunt and his uncle. Appellant
believed his aunt was located behind the door in the room. He was also
aware that his uncle was somewhere in the room because he has seen him
there earlier. Appellant tried to shoot behind the door in three
different spots, moving his pistol randomly between shots.

Appellant asserts he did not have the intent to "kill" his uncle.
However, by shooting behind the door, appellant created a killing zone.
The natural and probable consequence of appellant's actions was the
death or grievous bodily harm of whoever was behind the door.[^64]

The court concluded that the accused's act of shooting into an occupied
room, coupled with his stated intent to kill his aunt, was sufficient
evidence for the military judge to find his guilty plea to the attempted
murder of his aunt's husband provident.[^65]

Even though the courts consider the natural and probable consequences of
a wrongdoer's actions when applying the theory of concurrent intent, it
is important not to confuse this legal theory with the intent required
to prove murder by an act inherently dangerous to others under Article
118(3), UCMJ. Murder by an inherently dangerous act does not require an
intent to kill.[^66] "Article 118(3) was intended to deal with the
situation where death has occurred as a result of conduct which revealed
the actor's wanton disregard for human life, but was not directed at a
particular individual."[^67] The mental state that allows a wrongdoer to
have a wanton disregard for human life is not the same as having an
intent to kill.[^68] For this reason, a servicemember may not be
convicted of attempted murder by committing an act inherently dangerous
or by committing a homicide with an intent to inflict grievous bodily
harm.[^69] Attempted murder requires proof of a specific intent to kill;
the *mens rea* sufficient to prove murder by an act inherently dangerous
or to prove murder when the intent is to inflict grievous bodily harm,
is insufficient to prove an attempt to murder.[^70] This is an important
distinction.

For example, if a wrongdoer throws a grenade into a room, and everyone
is killed by the explosion, he could be prosecuted for murder by an act
inherently dangerous, if the wrongdoer only sought to teach a lesson and
did not intend to cause the death of anyone in the room.[^71] But, if no
one in the room died as a result of the explosion, the wrongdoer could
not be charged with and convicted of attempted murder based only on the
inherently dangerous act shown by a wanton disregard for the lives of
those in the room.[^72] While the wrongdoer may be prosecuted for other
assaults, the specific intent to kill is lacking.[^73] On the other
hand, if the accused intended to kill one person in the othewise crowded
room, and chose a method that created a "killing zone," he could be
convicted of attempting to kill all the people in the room using the
theory of concurrent intent.[^74]

**IV. PRACTICAL APPLICATION**

Undoubtedly, the facts in *Willis* are unusual. However, what makes
*Willis* an interesting, as well as instructive, piece of military
jurisprudence is its potential applicability to other assaultive-type
offenses requiring proof of specific intent. For example, suppose Airman
A had the specific intent to inflict grievous bodily harm on his wife by
throwing acid at her to punish her for an infidelity. Instead, he
inflicts grievous bodily harm on an unintended victim, his child, whom
his wife was using as a shield during this domestic altercation. Can
Airman A be charged with assault by intentionally inflicting grievous
bodily harm on the child, when Airman A did not specifically intend to
harm anyone other than his wife? Using the theory of transferred intent,
the answer is yes. Airman A is accountable for the natural and probable
consequences of his actions.[^75] Airman A's intent to inflict grievous
bodily harm on his wife can be transferred to prove the specific intent
element of the crime actually committed; assault in which grievous
bodily harm is actually committed.[^76] Moreover, if the acid also falls
on and injures anyone else in a "zone" created by the flying acid,
Airman A could be prosecuted for that aggravated assault using the
theory of concurrent intent.[^77]

The theory of concurrent intent can also be used to prove specific
intent in crimes other than murder and attempted murder. For example,
Airman Z is jealous of Airman X's selection to the MAJCOM softball team.
Airman Z, as the alternate, would play if Airman X were to get hurt.
Airman Z lights a fire outside Airman X's dormitory room, knowing that
the only way Airman X could escape the fire is to jump out the window.
Unfortunately, Airman X is having a party to celebrate his selection to
the team. Airman X, along with five of his friends, suffer grievous
bodily injury when they jump out the window to escape the fire. Along
with arson, could Airman Z be prosecuted for aggravated assault by the
intentional infliction of grievous bodily harm on Airman X and his five
friends? The answer is, arguably, yes. Airman Z, by using a fire to
effectuate his intent to inflict grievous bodily harm on Airman X, had
the concurrent intent to harm everyone forced out of the room by the
fire he set. The use of fire created a zone of harm to anyone within
reach of the fire, in this case Airman X and his five friends. Airman Z
is criminally responsible for the natural and probable consequences of
his actions.[^78]

With the decision in *Willis*, the Court of Appeals has recognized the
applicability of the theories of transferred and concurrent intent in
military jurisprudence. However, the scope of this decision remains to
be seen. The *Willis* court specifically limited its ruling to the case
at hand and declined to "delineate . . . the outer limits of concurrent
intent or transferred intent."[^79] In doing so, the court recognized
the complexity of these two theories of criminal liability.

**V. CAVEAT**

Whatever limits that may ultimately be placed on the applicability of
the theories of transferred and concurrent intent, these theories
operate only to allow the fact finder to infer an accused's specific
intent to commit a certain act from the particular circumstances of the
case. Allowing a fact finder to infer an accused's specific intent based
on either of these theories should not be confused with creating a
presumption of intent. The Supreme Court in *Francis v. Franklin*
explained the difference between a mandatory presumption and a
permissible inference:

A mandatory presumption instructs the jury that it must infer the
presumed fact if the state proves certain predicate facts. A permissive
inference suggests to the jury a possible conclusion to be drawn if the
state proves predicate facts, but does not require the jury to draw that
conclusion.[^80]

The danger in applying the theories of concurrent and transferred intent
to create a presumption of intent instead of a permissive inference is
that such application may run afoul of the Due Process Clause.[^81] As
the Court in *Francis* opined:

Such presumptions violate the due process clause if they relieve the
state of the burden of persuasion on an element of an offense . . . . A
permissive inference does not relieve the state of its burden of
persuasion because it still requires the state to convince the jury that
the suggested conclusion should be inferred based on the predicate facts
proven . . . . A permissive inference violates the Due Process Clause
only if the suggested conclusion is not one that reason and common sense
justify in light of the proven facts before the jury.[^82]

They are merely methods of proving a necessary element of a crime in
order to hold a wrongdoer accountable for the natural and probable
consequences of his actions.[^83]

**VI. CONCLUSION**

Both transferred and concurrent intent are legal fictions. *"In fictione
juris semper aequitas existit"−*In the fiction of law there is always
equity.[^84] Equity, and the perception of fairness, demands that a
wrongdoer be properly prosecuted for what he did. With the increased
awareness of victim's rights, this need for a perception of fairness in
our military justice process is even more important. Without the ability
to use these theories of legal liability, a wrongdoer might be acquitted
because of a "legal technicality." Wrongdoers should be accountable for
the natural and probable consequences of their actions, and to do so, it
is important to understand and properly apply the legal fictions that
allow successful prosecutions in cases like *Willis.*

[^1]: *\*Lieutenant Colonel Coacher (B.S., Northern State College; J.D.,
    University of South Dakota School of Law) is the Chief, Special Law
    Branch, General Law Division, Office of The Judge Advocate General.
    She is a member of the South Dakota Bar.*

    *\*\*Captain Gallo (B.A., B.J., University of Texas at Austin; J.D.,
    Texas Tech University) is the Chief, Civil Law Division, 15th Air
    Force, Travis AFB, California. She is a member of the Texas State
    Bar.*

    ^?^ *See* United States v. Willis, 46 M.J. 258 (1997).

[^2]: *See* UCMJ art. 118(1) or (2) (1995).

[^3]: *See* *id.* art. 118(3); United States v. Berg, 30 M.J. 195
    (C.M.A. 1990).

[^4]: *See* UCMJ art. 80 (1995); *See also* United States v. Carroll, 10
    U.S.C.M.A. 16, 27 C.M.R. 90 (1958).

[^5]: *"In fictione juris semper aequitas existit"−*In the fiction of
    law there is always equity. [Black's Law Dictionary]{.smallcaps} 700
    (5^th^ ed. 1979).

[^6]: *See e.g*., UCMJ art. 85 (1995) (desertion with intent to avoid
    hazardous duty or shirk important service); *Id.* art. 106 (spying);
    *Id.* arts. 118(1) and (2) (premeditated or intentional murder);
    *Id.* art. 121 (larceny); *Id.* art. 124 (maiming); *Id.* art.
    128(4)(b) (assault with the intent to inflict grievous bodily harm).

[^7]: *Id.* art. 80.

[^8]: Dennis v. United States, 341 U.S. 494, 500 (1951); *see also*
    United States v. Freed, 401 U.S. 601, 613 (1971) (Brennan, J.,
    concurring in judgment); United States v. Balint, 258 U.S. 250,
    251-53 (1922); United States v. Anzalone, 43 M.J. 322 (1995).

[^9]: Morissett v. United States, 342 U.S. 246, 250-51 (1952) (footnotes
    omitted).

[^10]: 46 M.J. at 261.

[^11]: *Id.* (footnotes omitted).

[^12]: People v. Scott, 927 P.2d 288 (Cal. 1996); *see also* Jackson v.
    Follette, 462 F.2d 1041, 1047 (2d Cir. 1972).

[^13]: 2 C. Torcia, [Wharton's Criminal Law]{.smallcaps} § 144 (14^th^
    ed. 1979).

[^14]: Douglas N. Husak, *Transferred Intent*, 10 [Notre Dame J.L.
    Ethics & Pub. Pol'y]{.smallcaps} 65 (1996).

[^15]: *Id.* at 66-67.

[^16]: People v. Scott, 927 P.2d 288, 291 (Cal. 1996)*.*

[^17]: Ford v. Maryland, 625 A.2d 984 (Md. 1993).

[^18]: *See* Husak, *supra* note 14, at 69.

[^19]: *Id.* at 75.

[^20]: *See* 46 M.J. at 261. Much of the difficulty arises in how a
    particular jurisdiction applies the theory of transferred intent to
    situations other than the classic "bad aim" scenario. Some
    jurisdictions allow the wrongdoer's intent to be transferred,
    whether or not the contemplated crime was completed. These
    jurisdictions include:

    ArizonaState v. Rodriguez-Gonzales, 790 P.2d 287 (Ariz. 1990)the
    intent to kill is transferable to each unintended victim once there
    is an intent to kill someoneConnecticutState v. Hinton, 630 A.2d 593
    (Conn. 1993)intent is not a limited commodity that once used is
    totally expended and cannot be transferred to hold wrongdoer
    accountable for other unintended criminal actsDistrict of
    ColumbiaBrooks v. United States, 655 A.2d 844 (D.C. 1995)intent to
    murder intended victim could be transferred to prove specific intent
    to assault two unintended victimsIllinoisPeople v. Hill, 658 N.E. 2d
    1294 (Ill. 1995)intent to kill a certain victim can be transferred
    to prove attempted murder of unintended victim even though attempted
    murder of intended victim also chargedIndianaStraub v. State, 567
    N.E.2d 87 (Ind. 1991)transferred intent instruction was appropriate
    as applied to attempted murder or batteryMinnesotaMinnesota v. Ford,
    539 N.W.2d 214 (Minn. 1995)proof that the defendant intended to kill
    the victim who was shot and died could be used to prove the
    attempted murder of the unintended victim who was also shot, but did
    not die, using the theory of transferred intent, even though the
    defendant could be convicted of the intended murderNew MexicoState
    v. Abeyta, 901 P.2d 164 (N.M. 1995)transferred intent applies to
    attempted murder

    On the other hand, both California and Maryland courts reason that a
    resort to the legal fiction of transferred intent is unnecessary
    when the wrongdoer can be held accountable for the crime he intended
    to commit. These courts base their analysis on the belief that a
    wrongdoer who intends to kill or injure multiple victims is more
    culpable than the wrongdoer who intends to harm only a single
    individual, but through a mistake or bad luck ends up harming or
    killing other victims in addition to the intended victim. *See*
    California v. Czahara, 250 Cal. Rptr. 836 (Cal. Ct. App. 1988);
    California v. Calderon, 283 Cal. Rptr. 833 (Cal. Ct. App. 1991); and
    Ford v. State, 625 A.2d 984 (Md. 1993). Commentators have also
    accepted this position. *See* J. Dressler, *Understanding Criminal
    Law* 108 (1987); M. Moore, *Prima Facie Moral Culpability*, 76 B.U.
    L. Rev. 319, 322-23 (1996).

[^21]: Minnesota v. Ford, 539 N.W.2d 214 (Minn. 1995). In *Ford*, the
    defendant was convicted of intentional murder and attempted murder
    after a gang shooting of a uniformed officer sitting in a restaurant
    also injured an innocent bystander. The court held the jury
    instruction allowing the transfer of specific intent from the murder
    charge to prove an attempted murder charge was permissible.

[^22]: *See* cases cited *supra* note 20.

[^23]: Poe v. Maryland, 671 A.2d 501 (Md. 1996).

[^24]: *Supra* note 20.

[^25]: California v. Czahara, 250 Cal. Rptr. 836 (Cal. Ct. App. 1988).

[^26]: *Id*. at 839 (citing People v. Birreuta, 208 Cal. Rptr. 635 (Cal.
    Ct. App. 1984) (citation omitted)).

[^27]: 250 Cal. Rptr. at 839.

[^28]: Harvey v. State, 111 Md. App. 407, *cert. denied*, 344 Md. 330
    (1996); Poe v. State 341 Md. 523 (1996); Ford v. State, 625 A.2d 984
    (Md. 1993).

[^29]: Harvey, 111 Md. App. at 422-23.

[^30]: Poe v. Maryland, 671 A.2d 501, 503 (Md. 1996).

[^31]: Ford v. State 625 A.2d 984, 999 (Md. 1993).

[^32]: *Id.*

[^33]: "Under the doctrine of transferred intent, the essential element
    is present if the accused intended to kill someone." Norris v.
    Indiana, 419 N.E.2d 129, 133 (Ind. 1981).

[^34]: UCMJ art. 118(1) (1995).

[^35]: *Id.* art. 118(2).

[^36]: *Id.* art. 118(3).

[^37]: *Id.* art. 118(4). Specified felonies include: the perpetration
    or attempted perpetration of burglary, sodomy, rape, robbery or
    aggravated arson. *Id.*

[^38]: United States v. Roa, 12 M.J. 210, 212 (C.M.A. 1982); UCMJ arts.
    118(1) or (2) (1995).

[^39]: 12 M.J. at 212*.*

[^40]: *Id.*

[^41]: People v. Calderon, 232 Cal. App. 3d 930 (4^th^ App. Dist. 1991);
    People v. Czahara, 203 Cal. App. 3d 1468 (1^st^ App. Dist. 1988);
    Ford v. State, 625 A.2d 984 (Md. 1993); Harvey v. Maryland, 681 A.2d
    628 (Md. 1996); *see also,* R. Perkins & R. Boyce, [Criminal Law,
    924-25 (]{.smallcaps}3d ed. [1982).]{.smallcaps} *But see* State v.
    Dexter, 616 N.Y.S.2d 733 (N.Y. App. Div. 1994); State v.
    Rodriguez-Gonzales, 790 P.2d 287 (Ariz. 1990); People v. Hill, 658
    N.E.2d 1294 (Ill. App. 1995); State v. Ford, 539 N.W.2d 214 (Minn.
    1995); State v. Abeyta, 901 P.2d 164 (N.M. 1995); State v. Hinton,
    630 A.2d 593 (Conn. 1993).

[^42]: United States v. Willis, 46 M.J. 258, 261 (1997).

[^43]: Ford v. State, 625 A.2d 984, 1000 (Md. 1993).

[^44]: *Id.*

[^45]: 46 M.J. at 261-62; 625 A.2d at 1001.

[^46]: State v. Coolidge, 187 N.E.2d 694, 697 (Ill. 1963); *see also*
    People v. Kimble, 749 P.2d 803 (Cal. 1988). In *Kimble*, the
    defendant was charged, among other things, with murder, rape and
    burglary after he broke into a couple's home, raped the wife, killed
    the couple and left with the keys to their stereo store, which he
    used the following day to steal stereo equipment. The California
    Supreme Court, in discussing the trial court's instruction on
    special circumstances based on rape and robbery felony murder, held
    that there was sufficient evidence that the rape and robberies were
    not incidental to the murders so as to preclude a special
    circumstance instruction, and that the evidence clearly showed a
    concurrent intent to rape the wife and steal the stereo store keys.
    As recognized by the California court, even though a criminal may
    have a focus on committing a particular crime, that focus does not
    preclude the criminal mind from formulating multiple criminal
    intents to achieve that particular crime.

[^47]: State v. Murff, 194 N.E.2d 226, 227 (Ill. 1963).

[^48]: Ford v. State, 625 A.2d 984 (Md. 1993).

[^49]: *Id.* at 994.

[^50]: *Id.* at 996.

[^51]: *Id.* at 997.

[^52]: *Id.* at 997-98.

[^53]: State v. Wilson, 546 A.2d 1041 (Md. 1988).

[^54]: 625 A.2d at 999.

[^55]: *Id.* at 1000.

[^56]: *Id.* (emphasis added).

[^57]: Al Qaadir v. Gallegos, 56 F.3d 70 (9^th^ Cir. 1995).

[^58]: *Id.* *See also* State v. Dexter, 616 N.Y.S.2d 733 (N.Y. App.
    1994). In *Dexter*, the defendant fired multiple shots inside a
    club, killing one victim and hitting his intended victim, who
    survived. The court upheld the defendant's conviction for attempted
    murder of the surviving victim as well as the murder of the deceased
    victim. Although labeling its analysis as one of transferred intent,
    it really is an application of concurrent intent. The court said:

    > Although some of the shots may have gone wild, and may have been
    > fired in a struggle between the defendant and the surviving
    > victim, *the jury still has ample basis upon which to conclude
    > that all the shots were fired under a single design to effect
    > death.* *Id.* at 734 (emphasis added).

    In other words, the defendant's act of firing multiple shots at an
    intended victim created a "killing zone" around the victim such that
    the factfinders could infer an intent to kill everyone in the path
    of the bullets fired. This is a concurrent intent analysis.

[^59]: Ruffin v. United States, 642 A.2d 1288 (D.C. 1994).

[^60]: United States v. Willis, 46 M.J. 258 (1997).

[^61]: 642 A.2d at 1298.

[^62]: 46 M.J. at 258.

[^63]: *Id.* at 261.

[^64]: *Id.* at 261-62.

[^65]: *Id.* at 262.

[^66]: United States v. Berg, 30 M.J. 195 (C.M.A. 1990).

[^67]: United States v. Roa, 12 M.J. 210, 212 (C.M.A. 1982).

[^68]: *Id.*

[^69]: *Id.*

[^70]: *Id*. There are also other offenses where the *mens rea*
    necessary for committing the offense is not sufficient to support a
    conviction for an attempt of that offense. For example, a service
    member may not attempt to commit involuntary manslaughter by
    culpable negligence. Similarly, rape is a general intent crime, but
    to prove attempted rape or assault with the intent to commit rape,
    there must be proof that the member specifically intended to commit
    rape.

[^71]: 12 M.J. at 213.

[^72]: *Id.* United States v. Creek, 39 C.M.R. 666 (A.B.R. 1968). In
    *Creek*, the Army Board of Review overturned a soldier's conviction
    for attempted murder, based on the insufficiency of the pleading and
    an incorrect instruction. The accused was tried for attempted murder
    of "unknown persons" after he allegedly booby trapped an outdoor
    latrine with a hand grenade. No one was in the latrine at the time
    of the explosion. The law officer had instructed that the
    court-martial panel could convict of the charged offense based on
    either proof of an intent to kill or proof of an act inherently
    dangerous to others. The Army Board, relying on *United States v.
    Carroll*, 10 U.S.C.M.A. 16, 27 C.M.R. 90 (1958), concluded the
    instruction was erroneous "\[a\]s the offense of attempted murder
    involved a specific intent to kill." 39 C.M.R. at 668.

[^73]: 12 M.J. at 212; United States v. Thomas, 13 U.S.C.M.A. 278, 32
    C.M.R. 278 (1962).

[^74]: United States v. Willis, 46 M.J. 258, 262 (1997).

[^75]: *Id.* at 261.

[^76]: UCMJ art. 128(4)(b) (1995).

[^77]: 46 M.J. at 261.

[^78]: *Id.*.

[^79]: 46 M.J. at 262.

[^80]: Francis v. Franklin, 471 U.S. 307 (1985).

[^81]: *See* Sandstrom v. Montana, 442 U.S. 510 (1979).

[^82]: 471 U.S. at 314-15.

[^83]: 46 M.J. at 261.

[^84]: [Black's Law Dictionary]{.smallcaps} 700 (5^th^ ed. 1979).