Choosing the lowest offense level when intent is unclear

When the grade or class of a particular offense depends on whether it is committed intentionally, knowingly, recklessly, or negligently, its grade or class shall be the lowest for which the determinative state of mind is established with respect to any element of the offense. [L 1972, c 9, pt of §1] COMMENTARY ON §702-211 In many statutes the grade (felony, misdemeanor, or violation) or class (e.g., class A or class B felony) of an offense turns on whether the defendant acted intentionally, knowingly, recklessly, or negligently. Since a defendant may have differing states of mind with respect to the defendant's conduct, circumstances attendant thereto, and the result of the defendant's conduct, the Code makes it clear that, in those cases where distinctions are drawn on the basis of the defendant's state of mind, the conviction ought to be the lowest for which the determinative state of mind is established with respect to any element of the offense. As it has been put, "it is the lowest common denominator that indicates the quality of the defendant's conduct."[1] The law of homicide provides a ready illustration of the application of the above principle. Intentional killing is usually treated as crime of higher class than reckless killing. If a defendant intentionally killed another, recklessly mistaken that the other's conduct threatened the defendant with serious bodily harm or death, the homicide ought to be viewed as reckless killing because that is all that is established with respect to attendant circumstances negativing the defense of self defense. __________ §702-211 Commentary: 1. M.P.C., Tentative Draft No. 4, comments at 131 (1955).