State v. Tamalini

Sanders, J.

(dissenting) — The majority holds manslaughter is not an inferior degree of felony murder; however, there is much precedent to the contrary requiring this dissent.

Sub silentio overruling an established line of cases, the majority disapproves and eliminates a frequently used jury instruction without sufficient justification. As the majority’s author recently stressed, stare decisis is a “bedrock” principle of our legal system which counsels us not to jettison established case doctrine without sound justification. *737See State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997) (Alexander, J., dissenting).

Our inferior degree statute does not define “degree.” See RCW 10.61.003.7 Degree, however, does not and never has meant simply a legislative designation such as “third degree” or “fourth degree.” Indeed, when the inferior degree statute was originally passed in 1854 our criminal code did not statutorily label crimes by degrees at all. See Code of 1854, at 77-97. Rather the common law distinguished whether one crime was an inferior degree of another.8 Nor does the majority seem to disagree. In fact the majority cites the common-law test which holds one crime is an inferior degree of another if both: (1) proscribe but one offense and (2) are not separate and distinct. Majority at 732 (citing State v. Foster, 91 Wn.2d 466, 472, 589 P.2d 789 (1979)). Although the majority correctly states the test, it errs by not applying it.

The common law viewed murder and manslaughter as varying degrees of homicide. See, e.g., People v. Schleiman, 197 N.Y. 383, 385, 90 N.E. 950, 951 (1910) (“It has also been customary for trial judges to regard the various degrees of manslaughter as lesser degrees of the crime of felonious homicide.”); State v. Daniels, 12 Kan. App. 2d 479, 753 P.2d 300, 302 (1987) (“[T]he court look[s] to common-law precedents to determine that manslaughter is a lesser degree of murder, both being part of the generic crime of homicide.”).

A long line of Washington cases follows this rule including State v. Pepoon, 62 Wash. 635, 640, 114 P. 449 (1911), wherein we held, “It is no doubt true that the crime of *738murder includes the lesser crimes of murder in the second degree and of manslaughter, and it is equally true that the jury has a right to determine the degree of crime which was committed.” To the same effect is State v. Rader, 118 Wash. 198, 206, 203 P. 68 (1922) (“Manslaughter is a degree within the crime of murder.”); State v. Gallagher, 4 Wn.2d 437, 448, 103 P.2d 1100 (1940) (“It is unnecessary to cite the numerous authorities, and quote therefrom, sustaining the trial court’s submission of the issue of manslaughter [as a lesser degree of murder] to the jury.”), as well as State v. Robinson, 12 Wash. 349, 351-52, 41 P. 51, 41 P. 902 (1895), overruled in part on other grounds by State v. Ash, 68 Wash. 194, 122 P. 995 (1912); State v. McPhail, 39 Wash. 199, 81 P. 683 (1905); State v. Gottstein, 111 Wash. 600, 602, 191 P. 766 (1920); State v. Foley, 174 Wash. 575, 579, 25 P.2d 565 (1933); State v. Scheeler, 45 Wn.2d 661, 663, 277 P.2d 341 (1954); State v. Sill, 47 Wn.2d 647, 651-52, 289 P.2d 720 (1955); and State v. Berry, 52 Wn.2d 748, 755, 328 P.2d 891 (1958).

We most recently reaffirmed this principle in State v. Stationak, 73 Wn.2d 647, 652, 440 P.2d 457 (1968) (“ ‘Manslaughter is a degree within the crime of murder, and the request [for a lowest degree instruction] was not only within the statute, but within the general rule of law.’ We still have the statute and it still constitutes the general rule of law.”) (quoting State v. Rader, 118 Wash. 198, 206, 203 P. 68 (1922)).

The common law held murder and manslaughter were varying degrees of one another because both proscribe the same offense, homicide or unlawful killing. The only difference between the two is mental culpability. See 1 Sir Matthew Hale, The History of the Fleas of the Crown 449 (1st Am. ed. 1847) (“Murder and manslaughter differ not in kind or nature of the offense, only in the degree . . . .”); State v. Utter, 4 Wn. App. 137, 139-40, 479 P.2d 946 (1971) (“The actus reus is the culpable act itself .... In the present case, the appellant was charged with second-degree murder and found guilty of manslaughter. The actus reus *739of both is the same—homicide.”); State v. Ieremia, 78 Wn. App 746, 754 n.2, 899 P.2d 16 (1995) (“[s]ome lesser degree crimes simply involve a less culpable mental state—homicide, for example—”), review denied, 128 Wn.2d 1009, 910 P.2d 481 (1996); People v. Ray, 14 Cal. 3d 20, 533 P.2d 1017, 1021, 120 Cal. Rptr. 377 (1975) (“The critical factor in distinguishing the degrees of a homicide is thus the perpetrator’s mental state.”).9

Thus, all authority agrees manslaughter is an inferior degree of murder.10 The remaining question is whether the same is true for felony murder. Frecedent holds it is. Felony murder is simply a statutory way of committing murder. See RCW 9A.32.050(1) (a person commits second degree murder by (a) intentionally killing someone or (b) causing someone’s death during a felony).11 See also State v. Berlin, 133 Wn.2d 541, 552-53, 947 P.2d 700 (1997) (second degree felony murder and second degree intentional murder constitute the same crime, second degree murder).

In State v. Greer, 11 Wash. 244, 247, 39 P. 874 (1895) we held manslaughter is a lesser degree of murder regardless of which statutory murder alternative the defendant was charged. Greer was charged with first degree murder by poison. At that time first degree murder could be committed by any one of three statutory alternatives: (1) premeditated killing; (2) murder by poison; and (3) first degree *740felony murder. Hill’s Gen. Stat. (1891); Hill’s Penal Code § 1. The state argued this particular alternative of first degree murder had no lesser degree crimes. But the court disagreed, reasoning:

[MJurder in the first degree, however it may be committed, is the crime which is defined in the section which provides that one of the methods by which it may be committed is by causing the death of a person by the administration of poison. Such being the fact, there is no distinction between the crime of murder in the first degree when so committed and the crime of murder in the first degree when committed by other means. The language of the statute is that every person who shall kill another under certain circumstances shall be guilty of murder in the first degree, and there is no distinction as to the crime growing out of the means employed for its commission. We are, therefore, of the opinion that the crime set out in the statute is a single one and that, by whatever means it may have been committed, it includes the crime of murder in the second degree and manslaughter, as thereafter defined in the statute.

Greer, 11 Wash. at 246-47.

Under Greer manslaughter is a lesser degree of murder regardless of which alternative mode of murder defendant is charged with. It makes no difference whether defendant is charged with intentional murder or felony murder as “[mjurder in any form is the felonious killing of a human being.” State v. Rader, 118 Wash. 198, 203, 203 P. 68 (1922). Indeed, in State v. Howard, another case on point, this court applied the rule enunciated in Greer and held a manslaughter instruction was properly given as a lesser degree of first degree felony murder. State v. Howard, 33 Wash. 250, 260-61, 74 P. 382 (1903). In yet another case, directly on point, this court in State v. Cooley, 165 Wash. 638, 645, 5 P.2d 1005 (1931), citing State v. Greer and State v. Howard, held a manslaughter instruction was properly given as a lesser crime instruction in that first degree felony murder case.

State v. Berry, 52 Wn.2d 748, 755, 328 P.2d 891 (1958), another case directly on point, held a manslaughter instruc*741tion proper in a second degree felony murder case as a lesser degree. In Berry the defendant was charged with second degree felony murder for killing in the course of second degree assault. The jury was given a manslaughter instruction as a lesser degree, and the jury acquitted of felony murder but convicted defendant of manslaughter. On appeal defendant asserted the manslaughter instruction should not have been given. We disagreed, found the manslaughter instruction was properly given as a lesser degree of felony murder, and affirmed. Id. at 755 (manslaughter is a “lesser degree of the crime charged in the information [felony murder].”). Until today Berry has been the law in Washington. Under Berry and its predecessors, manslaughter is a lesser degree of felony murder.12

However, the majority ignores the binding authority of our highest court in favor of two recent opinions from the Court of Appeals. State v. McJimpson, 79 Wn. App. 164, 901 P.2d 354 (1995), review denied, 129 Wn.2d 1013, 917 P.2d 576 (1996), and State v. Campas, 59 Wn. App. 561, 799 P.2d 744 (1990), review granted, 118 Wn.2d 1014, 823 P.2d 1068 (1992). Majority at 732. In Campas the Court of Appeals declared, in a single sentence, without citing a single case, that manslaughter is not a lesser degree of felony murder and defendant’s assertion to the contrary “is novel but unpersuasive.” Campas, 59 Wn. App. at 564. McJimpson, with analysis only slightly more sophisticated, held the same. 79 Wn. App. at 171-72. Remarkably, neither Campas nor McJimpson cited Berry or any other relevant case on lesser degrees of murder. Yet, even if Campas or McJimpson had cited Berry or any other governing case, neither could have altered the rule in Berry as it is elementary that the Court of Appeals cannot overrule cases from this court. State v. Hairston, 133 Wn.2d 534, 539, 946 P.2d 397 (1997). Campas and McJimpson are contrary to Supreme Court precedent and therefore merit disapproval.

*742The majority claims felony murder and manslaughter proscribe different activity as one involves causing a death through reckless or criminally negligent conduct while the other causes a death through perpetrating a felony. Majority at 733. Yet, at their cores, both proscribe the unlawful killing of another. The meaningful difference between the two is the level of moral culpability attached to each. Our law adopts the legal fiction that causing a death during a felony is morally the same as causing a death intentionally or by premeditation. Thus, felony murder is the act of causing a death with that level of moral culpability required to constitute first or second degree murder. Manslaughter is causing a death with less culpability. Murder in any form and manslaughter are indeed varying degrees of homicide and should be treated as such. Let the jury decide.

The gravity of the majority’s holding cannot be gainsaid. Never again will a felony murder case see a manslaughter instruction. Thus we will have the anomalous situation where manslaughter instructions may be given in all murder cases13 except those charging under the felony murder theory alone. Such holds true even in cases where the evidence supports a manslaughter conviction. State v. Berry, 52 Wn.2d 748, 328 P.2d 891 (1958) was such a case as the jury there acquitted on second degree felony murder while convicting on manslaughter. State v. Paschall, 197 Wash. 582, 592-93, 85 P.2d 1046 (1939) was much the same. In such cases manslaughter is the true verdict and the jury must have access to a manslaughter instruction. Yet today’s majority categorically eliminates such instruction. Tamalini gave evidence he was too intoxicated to form the intent to assault. If such is true he may still have been reckless or negligent and thereby might be guilty of manslaughter alone.14 The majority responds that even if Tamalini demonstrated sufficient diminished capacity to negate the *743specific intent to commit second degree assault he would still commit negligent assault in the third degree under RCW 9A.36.031 which is a felony and thus Tamalini would still commit second degree felony murder, not manslaughter. Majority at 734. I doubt this result.

First, this court has never explored the contours of what constitutes “negligent assault.” This court has repeatedly held assault to be a specific intent crime requiring the specific intent to cause the assault. See State v. Hopper, 118 Wn.2d 151, 158, 822 P.2d 775 (1992) (“[T]he term ‘assault’ contains within it the concept of knowing conduct. The definition of ‘assault’ is a willful act.... ‘The word ‘assault’ is not commonly understood as referring to an unknowing or accidental act.’ ” (citations omitted)); State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995) (“We agree and hold specific intent either to create apprehension of bodily harm or to cause bodily harm is an essential element of assault in the second degree.”). See also State v. Dukowitz, 62 Wn. App. 418, 424, 814 P.2d 234 (1991) (by definition assault is an intentional act), review denied, 118 Wn.2d 1031, 828 P.2d 563 (1992); State v. Allen, 67 Wn. App. 824, 826, 840 P.2d 905 (1992) (“An allegation of assault contemplates knowing, purposeful conduct.”); State v. Tunney, 77 Wn. App. 929, 934, 895 P.2d 13 (1995) (“[I]t is implicit that assault is a knowing, intentional act.”), aff’d, 129 Wn.2d 336, 917 F.2d 95 (1996). Thus, this precedent suggests a negligent assault may be logically impossible.

Further, even if assault may now be committed without any specific intent but with negligence alone, I assert that *744such negligent assault would be insufficient to support a second degree felony murder conviction in any event. Common-law murder necessarily requires the element of “malice aforethought”15 and in a felony murder prosecution the malice aforethought is supplied by the malicious intent to commit the felony. See, e.g., Commonwealth v. Matchett, 386 Mass. 492, 436 N.E.2d 400, 409-10 (1982) (“[T]he felony-murder rule is based on the theory that the intent to commit the felony is equivalent to the malice aforethought required for murder.”); Commonwealth v. Watkins, 375 Mass. 472, 379 N.E.2d 1040, 1049 (1978) (“Under the theory of felony-murder the Commonwealth is still charged with proving the element of malice aforethought essential to the felony associated with the homicide.”); Commonwealth v. Rawls, 328 Pa. Super. 469, 477 A.2d 540, 543 (1984) (“[Tjhe felony-murder doctrine merely imputes the malice incident to the intentional felony over to the killing . . . .”).

In upholding the felony-murder rule this court noted the same. See State v. Wanrow, 91 Wn.2d 301, 306, 588 P.2d 1320 (1978) (“The theoretical basis of felony-murder . . . may be inferred from the malicious felonious intent which must be present to prove the underlying felony.”). How then can the majority justify a felony murder conviction based on negligent assault which necessarily lacks malice? The majority simply goes too far when it suggests negligent assault, a class C felony with no specific intent and a standard range sentence of one to three months,16 is sufficient to supply the constructive malice aforethought requirement to support second degree murder.

Washington has by far the broadest felony murder practice of any state in the union. Indeed, Washington stands virtually alone in allowing assault to serve as the *745predicate felony in a felony murder prosecution.17 Compare People v. Ireland, 70 Cal. 2d 522, 539, 75 Cal. Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323 (1969) with State v. Thompson, 88 Wn.2d 13, 558 P.2d 202 (1977).18 While nearly every state restricts the underlying felonies to either inherently dangerous felonies19 or to a short list of enumerated felonies,20 Washington allows any felony to suffice.

As every sister jurisdiction either eliminates felony murder altogether21 or restricts its scope considerably22 our court today so expands the crime to swallow every version of homicide. Under the majority’s analysis the prosecution may prevail on a second degree murder prosecution by showing that the defendant negligently, but unintentionally, assaulted, which means nothing more than harmed, the victim and the victim died. At best a negligent death is second degree manslaughter. See RCW 9A.32.070 (negligent killing is second degree manslaughter). But now a negligent death constitutes second degree murder. The ominous *746predictions of two commentators are thus realized as “manslaughter has ceased to exist as a separate crime; all manslaughters automatically ride up an escalator to become felony-murders.” Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 7.5 “Felony Murder” at 637 (2d ed. 1986). But such cannot be.23 As several courts have noted,

A felony-murder rule that punishes all homicides committed in the perpetration of a felony whether the death is intentional, unintentional or accidental, without the necessity of proving the relation of the perpetrator’s state of mind to the homicide, violates the most fundamental principle of the criminal law—“criminal liability for causing a particular result is not justified in the absence of some culpable mental state in respect to that result.”

Commonwealth v. Matchett, 386 Mass. 492, 436 N.E.2d 400, 409 (1982) (quoting People v. Aaron, 409 Mich. 672, 708, 299 N.W.2d 304, 328, 13 A.L.R.4th 1180 (1980)). Negligent third degree assault cannot serve as the predicate felony for second degree felony murder, even in Washington. Accordingly, Tamalini may have committed manslaughter alone.

Yet we will never know because the majority will not let the jury decide which level of moral culpability attaches. The majority forces the jury to the all or nothing Hobson’s choice between total acquittal and conviction of the highest crime even though the evidence may demonstrate an intermediate offense is actually the crime which fits. As one commentator has queried, “If the proof in a felony murder *747case shows a reasonable possibility that the defendant may be innocent of that crime, but guilty of manslaughter, and the defendant wishes to have the jury consider the lesser alternative, what public interest justifies confining the jury to an all-or-nothing choice?” Bernard E. Gegan, Lesser Included Crimes Under Felony Murder Indictments in New York: The Past Speaks to the Present, 66 St. John’s L. Rev. 329, 369 (1992).

Lesser offense instructions play a critical role in our criminal justice system. First and foremost, lesser crime instructions allow the jury to more closely correlate the verdict to the act committed and thus arrive at the “true verdict.”24 This is particularly true in murder cases where there is often a dead body and the only question is the moral culpability of the defendant. In such case the jury should have access to all the varying lesser degrees of murder.25 In this respect lesser offense instructions allow the defendant to present his theory of the case,26 at least to the extent his theory is compatible with commission of a lesser crime. As the Supreme Court has noted, failure to give lesser crime instructions where the evidence supports such instruction puts the jury to an impermissible choice.27 This fear of a Hobson’s choice is substantial enough that erroneous failure to give a lesser crime instruction is reversible *748error. State v. Warden, 133 Wn.2d 559, 562, 947 P.2d 708 (1997). Yet the majority now opens the door for erroneous verdicts in every future felony murder case.

Because the majority holds manslaughter instructions cannot be given in this, or any, felony murder case, I dissent.

Johnson and Madsen, JJ, concur with Sanders, J.

10.61.003. Degree offenses—Inferior degree—Attempt

Upon an indictment or information for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto, or of an attempt to commit the offense.

See, e.g., State v. Daniels, 12 Kan. App. 2d 479, 753 P.2d 300, 302 (1987) (“[T]he common law is the guide for determining whether one crime is a lesser degree of another.”).

The same rule is reflected in the very murder statute under which Tamalini was charged. RCW 9A.32, entitled “Homicide,” declares

Homicide is the killing of a human being . . . and is either (1) murder, (2) homicide by abuse, (3) manslaughter, (4) excusable homicide, or (5) justifiable homicide.

RCW 9A.32.010. The majority, however, finds irrelevant the fact that intentional murder, felony murder, and manslaughter are all contained in the same statute. Majority at 734. But, in State v. Berlin, 133 Wn.2d 541, 552-53, 947 P.2d 700 (1997), this court relied on the fact that felony murder and intentional murder are contained in the same statute to conclude the two constitute the same crime, murder.

Yet without citing any authority and without any discussion, the majority asserts the opposite. Majority at 735 n.5.

However, if the felony is one of the most serious violent felonies listed in RCW 9A.32.030(l)(e), then the crime is first degree murder.

A law review article on lesser offenses in Washington also acknowledges the rule. Kyron Huigens, The Doctrine of Lesser Included Offenses, 16 U. Puget Sound L. Rev. 185, 227 n.168 (1992) (“[S]econd degree murder and first and second degree manslaughter are lesser degree offenses to first degree felony murder.”).

See State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997) (manslaughter instruction proper where intentional and felony murder charged).

See, e.g., State v. Berlin, 133 Wn.2d 541, 552, 947 P.2d 700 (1997) (intoxication provides factual basis for giving manslaughter instruction in murder case). See also People v. Conrad, 31 Cal. App. 3d 308, 107 Cal. Rptr. 421, 435 (1973) *743(“[W]here the felony-murder rule is invoked and diminished capacity is raised as a defense, manslaughter instructions must be given if there is a factual dispute as to whether the homicide was committed during perpetration of the underlying felony or where diminished capacity or intoxication are urged as a defense to the underlying felony charge.”); Burch v. State, 346 Md. 253, 696 A.2d 443, 457 n.4 (In a felony murder case “when a defense is generated to the underlying felony, including, for example, evidence of intoxication sufficient to negate a requisite intent, . . . instructions on lesser degrees of murder, or even manslaughter, may be appropriate.” (citations omitted)), cert. denied, 522 U.S. 1001, 118 S. Ct. 571, 139 L. Ed. 2d 410 (1997); State v. Selby, 183 N.J. Super. 273, 443 A.2d 1076, 1080 (1981) (In felony murder case, “the trial judge committed reversible error in refusing a jury charge on manslaughter, to which defendant was entitled” because such is a lesser degree offense and the evidence supported such verdict.).

See 4 William Blackstone, Commentaries *198 (“[Malice aforethought] is the grand criterion which now distinguishes murder from other killing . . . .”).

This is the standard range for first time offenders. RCW 9.94A.310.

It appears Maine is the only other jurisdiction allowing assault to serve as the predicate felony.

See also Richard Bonnifield, Criminal Law, Felony-Murder Rule: An Assault Resulting in Homicide May be Used to Invoke the Felony-Murder Rule, 13 Gonz. L. Rev. 268 (1977); and Jeffrey A. James, Comment, Washington’s Second Degree Felony-Murder Rule and the Merger Doctrine: Time for Reconsideration, 11 U. Puget Sound L. Rev. 311 (1988).

Commonwealth v. Matchett, 386 Mass. 492, 436 N.E.2d 400, 409 (1982).

For example, Vermont limits the reach of felony murder to five enumerated felonies. State v. Doucette, 143 Vt. 573, 470 A.2d 676 (1983) (citing Vt. Stat. Ann. tit. 13, § 2301 (1981)).

England eliminated felony murder in 1957 (2 Wayne R. LaFave & Austin W Scott, Jr., Substantive Criminal Law § 7.5, at 233 n.135 (1986)). In America several states have followed suit. See Haw. Rev. Stat. § 707.701 (1976); Ky. Rev. Stat. Ann. § 507.020 (Anderson Supp. 1982); Ohio Rev. Code Ann. §§ 2903.01, 2903.04 (Michie 1996). Michigan abolished felony murder by court decision. See People v. Aaron, 409 Mich. 672, 299 N.W.2d 304, 328, 13 A.L.R.4th 1180 (1980) (abolishing felony murder altogether because “it violates the basic premise of individual moral culpability upon which our criminal law is based.”).

For example, New Mexico requires the prosecution to prove intent to kill in felony murder prosecutions. State v. Ortega, 112 N.M. 554, 817 P.2d 1196 (1991). See also James J. Tomkovicz, The Endurance of the Felony-Murder Rule: A Study of the Forces that Shape Our Criminal Law, 51 Wash. & Lee L. Rev. 1429, 1467 (1994); W E. Shipley, Annotation, Judicial Abrogation of Felony-Murder Doctrine, 13 AL.R.4th 1226 (1982).

Further, if negligent assault can serve as the predicate for second degree felony murder then the same facts, a negligently inflicted injury resulting in death, would constitute both second degree felony murder and second degree manslaughter and such a scheme would violate equal protection. See Olsen v. Delmore, 48 Wn.2d 545, 295 P.2d 324 (1956) (statutes proscribing different degrees of punishment for the same activity violate equal protection). Further, in any future second degree murder case the prosecutor could elect to prove all the requisites for intentional murder or could simply prove negligence and death for the same second degree murder conviction. See State v. Collins, 55 Wn.2d 469, 470, 348 P.2d 214 (1960) (“The principle of equality before the law is inconsistent with the existence of a power in a prosecuting attorney to elect, from person to person committing this offense, which degree of proof shall apply to his particular case.”).

Christen R. Blair, Constitutional Limitations on the Lesser Included Offense Doctrine, 21 Am. Crim. L. Rev. 445, 449 (1984) (Lesser crime instructions “ ‘[e]n-able the jury to correlate more closely the criminal conviction with the act committed.’ ” (quoting Note, Criminal Procedure-Recognizing the Jury’s Province to Consider Lesser Included Offense-. State v. Ogden, 58 Or. L. Rev. 572 577 (1980))); State v. Wimberly, 498 So. 2d 929, 933 (Fla. 1986) (prime purpose of lesser crime instruction is “to prevent a miscarriage of justice by enabling the jury to choose the true verdict. . . .”) (Shaw, J., dissenting).

See, e.g., People v. Schleiman, 197 N.Y. 383, 385, 90 N.E. 950, 951 (1910) (“upon the trial of indictments for murder in the first degree it has been the usual practice for the trial judge, even without any request, and certainly when requested, to charge the jury that they might find the defendant guilty of murder in the second degree, or of manslaughter in any of its several degrees . . . .”).

State v. Theroff, 95 Wn.2d 385, 389, 622 P.2d 1240 (1980) (“Each side is entitled to have the trial court instruct upon its theory of the case if there is evidence to support that theory”).

Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 36 L. Ed. 2d 844 (1973) (“Where one of the elements of the offense charged remains in doubt, *748but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.”).