We have a theft going to trial. The indictment says knowingly and intentionally at the beginning and with intent to deprive at the end. There is case law that says the mental state is the intent to deprive. And there is some case law that says it's okay to have the knowingly and intentionally--cases that talk about surplusage, etc. My question is, what legal effect does the knowing mental state allegation have when it is still in the indictment at trial time? Can I argue that it was knowing or intentional...or is it a specific intent crime? Should we even have definitions of knowingly in the charge if we can't use it--confuse the jury? Can we use it? Don't really want to create appeal issues, but I think the juries can understand knowingly easier than intentionally--and fits the facts of my case.

Theft is a specific intent crime. The way your indictment is worded now requires you to prove two mental states instead of one: both that the defendant intended to deprive the owner of the property at the time the property was acquired or control was exercised over it AND that the defendant intentionally or knowingly acquired it or exercised control over it. Frankly, the second requirement probably isn't a big deal, because it would be very difficult to prove property was taken with intent to deprive the owner of it if the property was taken by accident (how do you intend to take keep it from the owner if you don't know you have it?).

In any event, the simple solution is to move to amend your indictment, to strike the intentional or knowingly language. Then, you don't need a definition for knowingly and you don't argue it or discuss it at trial or in voir dire.

If, however, you don't want to give your defendant the option of having 10 days before trial, then you'll need to prove both mental states (although, again, if you prove it was taken with intent to deprive you've pretty much proven it was taken intentionally or knowingly). In this circumstance, the definition of knowing should be in the charge, and you can argue that the defendant knowingly took the property (or knowingly exercised control over it), but you still must prove the defendant intended to deprive the owner of it. It is not sufficient to argue that the defendant knew he was depriving the owner of it.

That is not a problem. The State is entitled to plead in the conjunctive and prove in the disjunctive. I don't recall the case off the top of my head but the gist is that when you plead the word AND it really just means AND/OR so long as the law only requires you to prove one and not both. In other words, it says AND in the indictment but in the jury charge you can just word it as OR, and you can argue it that way too. You don't need to prove both and you can explain to your jury that it can be either or.

Also if you did need to ever amend an indictment to change something like this the defense does not get 10 days because all you are doing is striking language. You aren't adding anything that would give them right to notice and you aren't changing the offense.

[This message was edited by Adam Poole on 08-01-09 at .]

Thanks for the input!