concurring. While I concur that this case should be affirmed, I write separately to set out my analysis on the application of Ark. Code Ann. § 5-2-406 (Repl. 1997). Denise Wilson was charged with the capital murder of William Cunningham. Her two sons, Charles Stevenson and Alphonso Shuntly Wilson, were also charged with the capital murder ofWilliam Cunningham. The cases against Wilson’s sons were to be tried separately after her trial.
At trial, the State alleged that Wilson and her two sons went to Cunningham’s house with the intent of killing him, that they arrived wearing gloves, and that when Cunningham let them in and turned his back, he was struck in the head with a hammer and cut with a knife. The State did not identify who struck the blows or who cut Cunningham.
The jury was instructed on capital murder, first-degree murder, second-degree murder, and accomplice liability. Under accomplice liability, a person may commit an offense by his own conduct or by that of another person. Ark. Code Ann. § 5-2-401 (Repl. 1997). There is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Jefferson v. State, 359 Ark. 454, 198 S.W.3d 527 (2004). A person is an accomplice when he or she solicits, advises, encourages, coerces, aids, agrees to aid, or attempts to aid in the commission of an offense. Ark. Code Ann. § 5-2-403(b)(1-2) (Repl. 1997).
However, when causing a particular result is an element of an offense charged under accomplice liability, the accomplice must act with the culpability required for the commission of the offense. Ark. Code Ann. § 5-2-403(b) (Repl. 1997). Causing the death of a person, as in murder or manslaughter, is a particular result. See Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993). Capital murder as charged in this case requires premeditated and deliberated purpose in causing the death of another person. Ark. Code Ann. § 5-10-102(a)(4) (Supp. 2003). Thus, in order to convict Wilson of capital murder under accomplice liability, the State had to prove that with the premeditated and deliberated intent that Cunningham be killed Wilson solicited or aided others who killed Cunningham. There was substantial evidence to show premeditation and deliberation by Wilson, such as Wilson’s arriving at Cunningham’s house wearing gloves in apparent preparation for the murder. Had the evidence shown a less culpable mental state than premeditation and deliberation, the jury could have found her liable of a homicide of a lesser degree. Allowing the jury to decide the matter is consistent with this court’s holding in Bosnick v. State, 248 Ark. 846, 850, 454 S.W.2d 311, 314 (1970), where, as the majority notes, this court stated that “the jury may assign degrees of guilt among the conspirators in accordance with their respective culpability.” This principle was codified as Ark. Stat. Ann. § 41-306 (Repl. 1977) by Act 280 of 1975 and entitled, “Criminal liability for conduct of another-multiple convictions-different degrees.” This section is currently found at Ark. Code Ann. 5-2-406 (Repl. 1997), and provides that:
When two (2) or more persons are criminally liable for an offense of which there are different degrees, each person shall be liable only for the degree of the offense that is consistent with his own mental culpability or with his own accountability for an aggravating fact or circumstance.
The original commentary to section 41-306 provided:
This section provides that where an actor is sought to be subjected to accomplice liability for conduct of another, and the conduct alleged may give rise to differing degrees of the same offense depending on an attendant culpable mental state, the accomplice actor is subject only to that liability consistent with his own culpable mental state.
It is thus clear that as Wilson alleges, the finder of fact must make a determination of the mental state of the person accused under accomplice liability. However, she asserts further that only an instruction based on Ark. Code Ann. § 5-2-406 will satisfy this requirement. She is mistaken.
The circuit court first instructed the jury on capital murder, stating that it must find “that with premeditated and deliberated purpose of causing the death of William Cunningham, Denise Wilson, or an accomplice, caused the death of William Cunningham.” Instructing that Wilson could be criminally liable based on the mental states of her accomplices was in error. An instruction based on Ark. Code Ann. § 5-2-406 might have cured the error by telling the jury Wilson was only liable under her own mental state. However, the circuit court corrected its error and instructed the jury anew, stating that on capital murder it must find, “that with premeditated and deliberated purpose of causing the death of William Cunningham, Denise Wilson caused the death ofWilliam Cunningham.” Thus, the jury was specifically asked to determine whether Wilson had the mental state necessary for a conviction of capital murder. The model instructions accurately stated the law and resort to a special instruction based on Ark. Code Ann. § 5-2-406 would have been unnecessary and error. Jackson v. State, 359 Ark. 297, 197 S.W.3d 468 (2004).