Nottawaseppi Huron Band of the Potawatomi, MI Article II General Provisions

§ 8.6-2 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

INDIAN

Any person who is:

A. A member of the Nottawaseppi Huron Band of Potawatomi Indians; or

B. A member of any federally-recognized Indian tribe, band or group.

MENTAL STATES

A. PURPOSELY OR INTENTIONALLY A person's state of mind with respect to a result or to conduct where the person's conscious objective is to engage in such conduct or to cause such a result.

B. KNOWINGLY Where a person engages in conduct with a firm belief unaccompanied by substantial doubt that he or she is doing that conduct or where the person is aware that it is practically certain that the conduct will cause such a result.

C. RECKLESSLY Conduct where a person acts consciously and disregards a substantial and unjustifiable risk that a particular result will occur as a consequence of that conduct or a particular circumstance exists with respect to the conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the person's conduct and the circumstances known to the person, its disregard involves a gross deviation from the standard of care that a law-abiding person would observe in the situation.

D. NEGLIGENTLY Conduct with respect to a particular result or circumstance where the person should be aware of a substantial and unjustifiable risk that such a result will occur as a consequence of his or her conduct or particular circumstances exist with respect to such conduct. The risk must be of such a nature and degree that the person's failure to perceive it, considering the nature and purpose of the person's conduct and the circumstances known to the person, involves a significant deviation from the standard of care that a reasonably prudent person would observe in the situation.

PERSON

An individual, association, corporation, partnership or other legal entity recognized in law as having certain rights and obligations.

[Added 3-17-2016 by Res. No. 03-17-16-05]

§ 8.6-3 Criminal offenses shall be based on voluntary conduct.

No person shall be convicted of an offense except based on conduct which includes a voluntary act or the omission to perform an act of which the defendant is physically capable. Except where otherwise provided in this chapter with respect to a particular offense, an offense is established only if a person acts intentionally with respect to every element of the offense.

§ 8.6-4 Burden of proof.

A. The Tribe has the burden of proving each element of an offense beyond a reasonable doubt.

B. Whenever the defendant introduces sufficient evidence of a defense to support a reasonable belief as to the existence of that defense, the Tribe has the burden of disproving such defense beyond a reasonable doubt unless this chapter or another applicable law expressly requires the defendant to prove the defense by a preponderance of evidence.

§ 8.6-5 Defenses.

A. Ignorance or mistake.

(1) Ignorance or mistake as to a matter of fact or law is a defense if:

(a) The ignorance or mistake negates the necessary mental state required for the commission of an offense; or

(b) The law provides that the state of mind established by such ignorance or mistake constitutes a defense.

(2) Whenever in this chapter an offense depends on a child being less than 12 years of age, it is no defense that the defendant did not know the child's age or reasonably believed the child to be older than 12 years of age. Whenever criminality depends on a child being less than a critical age greater than 12 years of age, it is an affirmative defense for the defendant to prove that he or she reasonably believed the child to be above the critical age.

B. Intoxication.

(1) Intoxication is not a defense unless it negates an element of the offense.

(2) When negligence or recklessness is an element of the offense, self-induced intoxication is no defense.

C. Self-defense. The use of reasonable force is a defense when a person reasonably believes that such force is immediately necessary to protect himself or herself; provided, however, that:

(1) A person is not justified in using force for the purpose of resisting arrest, execution of process, or other performance of duty by a public official, regardless of whether the conduct of the public official is lawful; but clearly excessive force on the part of the public official may be resisted.

(2) A person is not justified in using force if the conduct of the individual or individuals against whom force is used was provoked by the person himself or herself with the intent to cause physical injury to that other individual or those other individuals.

D. Defense of others. The use of force in order to defend a third person is a defense if:

(1) The defendant reasonably believes that the person whom he seeks to protect would be justified in using such protective force;

(2) Neither the defendant nor the person whom he seeks to protect has, by provocation or otherwise, forfeited the right of self-defense; and

(3) The defendant reasonably believes that intervention is necessary for the protection of such other person.

E. Defense of property. The use of force, other than deadly force, to protect property is a defense if the defendant reasonably believes that such force is necessary to prevent or terminate conduct which the defendant reasonably believes constitutes the commission or attempted commission of a crime involving trespass, damage to or theft of property.

F. Use of deadly force. The use of deadly force is a defense only where the defendant reasonably believes that such force is necessary to protect himself, herself or another person from death, serious bodily harm, kidnapping, sexual contact as defined in § 8.6-53 compelled by force or threat, or to prevent or terminate the commission or attempted commission of arson.

G. Duress. Duress is a defense only where the defendant reasonably believes that he or she is compelled to act by the threat of death or serious bodily harm such as would render a person of reasonable firmness incapable of resisting such threat.

H. Entrapment. Entrapment is a defense only where a law enforcement officer induces the defendant to commit an offense using persuasion or other means such as would cause a normally law-abiding person to commit the act or acts that are elements of the offense. Conduct merely affording the defendant an opportunity to commit the offense does not constitute entrapment.

I. Mental disease or defect. Mental disease or defect is a defense where a person, because of a diagnosable mental disease or defect, lacks substantial capacity either to appreciate the wrongfulness of that conduct or to conform that conduct to the requirements of law. The term "mental disease or defect" does not include intoxication or an abnormality manifested only by repeated criminal or other antisocial conduct.

J. Double jeopardy. If a criminal prosecution is for a violation of the same provision of law and is based upon the same facts as a former prosecution in Tribal Court, it is barred by the former prosecution, when:

(1) The former prosecution resulted in an acquittal;

(2) The former prosecution proceeded on the basis of a plea of guilty or no contest; or

(3) The former prosecution resulted in a conviction which has not been reversed or vacated.

§ 8.6-6 Solicitation and complicity.

A. A person may be convicted of an offense based upon the conduct of another person when:

(1) Acting with the state of mind sufficient for the commission of the offense, the defendant causes another person to engage in such conduct; or

(2) With the intent that an offense be committed, the defendant solicits, requests, encourages, commands, induces or intentionally aids another person to engage in such conduct.

B. The penalty for being an accomplice to a crime is the same as the penalty for being a principal in the crime.

C. A person is not liable under this section for the conduct of another if he or she terminates his complicity prior to the commission of the offense and gives timely warning to law enforcement authorities or otherwise makes reasonable efforts to prevent the commission of the offense, or if he or she is a law enforcement officer authorized by law to investigate the commission of offenses.

§ 8.6-7 Attempt.

A. A person is guilty of an attempt to commit a crime if the person intentionally does or omits to do anything which, under the circumstances as the person believes them to be, is an act or omission constituting a substantial step toward the commission of a crime.

B. A person who engages in conduct designed to aid another person to commit a crime, which would establish complicity under § 8.6-6 if the crime were committed by such other person, is guilty of an attempt to commit the crime even if the crime is not actually committed or attempted.

C. The penalty for an attempted crime is the same as the penalty for the completed crime.

§ 8.6-8 Multiple counts.

A. When the conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense, unless:

(1) Inconsistent findings of facts are required to establish the commission of the offense;

(2) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or

(3) The offense is defined as a continuing course of conduct and the defendant's course was uninterrupted except where the law provides that specific periods or instances of such conduct constitute separate offenses.

B. If the same conduct is defined as an offense in different laws or in different articles of this chapter, the offender may be prosecuted under any one or all of such sections subject to the limitations provided by this chapter. It shall be immaterial to such prosecution that one of the sections of this chapter provides a lesser penalty than another or was enacted at a later date than another, unless the later section or enactment specifically repeals the earlier.