concurring.
I write separately to address two legal issues: the question of whether an intoxicated witness is competent to testify, and the question of how juries should be instructed concerning the law of complicity.
*656The competency of an intoxicated witness under Alaska Evidence Rule 601
As explaihed in the majority opinion, Ahs-oak was intoxicated when he first took the stand at Spencer's trial, Ahsoak nevertheless gave a significant amount of testimony before the prosecutor noticed that Ahsoak's breath smelled of alcoholic beverages. When the prosecutor brought this issue to Judge Pengilly's attention, and when Judge Pengilly then questioned Ahsoak about this matter, Ahsoak admitted that he had drunk several beers, that he was feeling the influence of the aleohol, and that it was affecting his testimony.
Spencer argues that, under these facts, Ahsoak was not competent to be a witness, and that Judge Pengilly should have struck all of Ahsoak's testimony up to that point.
Spencer relies most heavily on Ahsoak's statements that, "half the time", he has difficulty telling the truth when he is intoxicated, and that "[he doesn't] even remember what [he is] saying half the time when [he is] intoxicated." Spencer argues that Ahsoak could not be a competent witness if, because of intoxication, he was saying things with only half a regard to whether they were true.
This may, indeed, have been a valid reason to distrust Absoak's testimony, but it does not appear to be a ground for declaring that Ahsoak lacked the competency to testify.
Although the rules of evidence place many restrictions on the statements and the physical evidence that can be presented in court, the evidence rules place very few restrictions on the people who can appear as witnesses. The law has, at one time or another, prohibit, ed whole classes of people (eg., felons, non-Christians and various Christian heretics, and all criminal defendants) from taking the witness stand; but under modern law, very few people are disqualified from testifying.1
In particular, under Alaska Evidence Rule 601, any person who is capable of understanding the duty to tell the truth and capable of giving coherent testimony is competent to be a witness. Evidence Rule 601 reads:
A person is competent to be a witness unless the court finds that (1) the proposed witness is incapable of communicating concerning the matter so as to be understood by the court and jury either directly or through interpretation by one who can understand the proposed witness, or (2) the proposed witness is incapable of understanding the duty of a witness to tell the truth.
Certainly, there are witnesses who have difficulty confining their testimony to the truth-because of self-interest, or bias for or against a party, or intoxication, or mental condition or disability, or otherwise. But this is not a ground for declaring the witness incompetent to testify under Evidence Rule 601. Rather, as Rule 601 states, a witness's competency hinges on whether the witness can sufficiently communicate the substance of their testimony "so as to be understood by the court and [the] jury", and whether the witness is capable of understanding "the duty ... to tell the truth".
If a witness is so impaired by intoxicants or mental illness that their testimony is incoherent, then Evidence Rule 601 might serve as authority for declaring the witness incompetent to testify. See United States v. Hyson, 721 F.2d 856 (1st Cir.1983), where the First Circuit held that Federal Evidence Rule 601 justified the exclusion of testimony on competency grounds when the witness was incoherent due to drug use.
But Ahsoak's testimony was not incoherent. In fact, Judge Pengilly found just the opposite. When the matter of Ahsoak's drinking was brought to the judge's attention, Judge Pengilly declared, "My impression ... is that [Absoak's testimony has] been perfectly coherent and cogent.... He's not visibly intoxicated; otherwise, obviously, I would have said something earlier."
Under these facts, Evidence Rule 601 does not appear to be a proper ground for exelud-ing or striking Abhsoak's testimony. As the Sixth Cireuit observed in United States v. Ramírez, 871 F.2d 582, 584 (6th Cir.1989) (construing Federal Evidence Rule 601), a court's power to exclude testimony out of *657concern that the witness is impaired must be found outside of Evidence Rule 601.
See United States v. Van Meerbeke, 548 F.2d 415 (2nd Cir.1976), a case in which the principle government witness ingested some of the heroin that had been offered into evidence. The Second Cireuit held that the trial judge committed no error when he allowed the jury to decide whether the witness's testimony was credible, after giving the defense attorney the opportunity to bring out the fact that the witness had ingested drugs while on the stand.
See also United States v. Harris, 542 F.2d 1283 (7th Cir.1976), a case in which a government witness admitted using heroin two days before his testimony and taking Demerol and Phenergon on the day before his testimony. On several occasions during his testimony, the witness was observed to be bouncing and nodding. A defense expert testified that a person who had taken the same drugs that the witness had taken would experience a clouding of their consciousness and would have difficulty in accurately framing their thoughts. Nevertheless, the Seventh Cireuit held that it was up to the jury to decide how the witness's drug usage and impaired condition affected the credibility of the witness's testimony.
This is not to say that a trial judge lacks the power to take precautionary or corrective measures when the judge learns that a witness is currently impaired by intoxicants. However, in all but the most extreme cases, the witness remains competent to testify under Evidence Rule 601.
The jury instruction on accomplice liability
This appeal presents one more instance of a problem that arises from time to time when the prosecution's case rests on the theory of accomplice liability.
The State argued that Spencer should be held accountable, as an accomplice, for conduct that was performed by his co-defendant Williams. Jury Instruction 20 told the jurors that an "accomplice" is "[a] person whol,] in some manner, knowingly and with eriminal intent, assists or participates in a criminal act". The instruction went on to say:
A person need not commit every element of the offense in order to be guilty as an accomplice. However, it is necessary that the person be in some way associated with the venture, that the person participate in it as something that he or she wishes to bring about, and that the person seek by his or her actions to make it succeed.
At trial, Spencer did not object to the wording of this instruction. But now, on appeal, he contends that the trial judge committed plain error by giving this instruction.
Spencer's precise argument is that this instruction led the jury astray because it did not say that the State was required to prove that Spencer acted with "specific ... intent to bring about the illegal end". This contention is easily disposed of-for the instruction did tell the jury that this was a required element of the State's proof. The instruction said that, to establish a defendant's complicity in a criminal venture, "it is necessary that the [defendant] participate in [the venture] as something that he or she wishes to bring about [and have it] suceeed."
To the extent Spencer is arguing that the government must prove that an accomplice acted "intentionally" with respect to any unlawful result that constitutes an element of the crime, even when the principal could be convicted on proof of a lesser culpable mental state (e.g., knowledge or recklessness), Spencer is wrong. See Riley v. State, 60 P.3d 204, 221 (Alaska App.2002).
Nevertheless, Spencer's case does illustrate a recurring problem.
The jury instruction that was given in Spencer's case derives from Judge Learned Hand's formulation of the federal common-law definition of complicity in United States v. Peoni, 100 F.2d 401, 402 (2nd Cir.1938). More than thirty years ago, the Alaska Supreme Court adopted Judge Hand's formulation as an accurate statement of Alaska's common-law definition of complicity: see Evans v. State, 550 P.2d 830, 841 (Alaska 1976), quoting Gordon v. State, 533 P.2d 25, 29 *658(Alaska 1975), which in turn was quoting Peomi.
Since then, trial judges and attorneys have frequently turned to this language when it was necessary to instruct a jury on the law of complicity.2 And, as Spencer's case illustrates,. the Peoni formulation continues to appear in jury instructions to the present day.
The problem is that Alaska no longer relies on a common-law definition of complicity. Instead, we have a statute, AS 11.16.110(2), that specifies the elements that must be proved to establish accomplice liability.
(AS 11.16.110 actually specifies three different ways in which a person can be held criminally accountable for conduct performed by another person. We are concerned here only with subsection (2) of the statute-the portion that defines accomplice liability.)
AS 11.16.110(@2) declares that a defendant "is legally accountable for the conduct of another [person] constituting an offense if [, acting] with [the] intent to promote or facilitate the commission of the offense, the [defendant] ... solicits the other [person] to commit the offense ... or aids or abets the other [person] in planning or committing the offense[.]"
In Riley, we construed this statute to require proof of both an unlawful act and a culpable mental state. The unlawful act can take one of three forms: (1) soliciting another person to engage in the conduct that constitutes the actus reus of the charged offense, (2) inciting or encouraging ("abetting") the other person to plan or engage in the conduct that constitutes the actus reus of the charged offense, or (8) aiding the other person in planning or committing that conduct.3
In addition to proving that the defendant solicited, encouraged, or aided the other person's conduct, the State must also prove that the defendant did so with the intent to promote or facilitate that conduct. See Riley, 60 P.3d at 207, 221. There is no accomplice liability if a defendant unwittingly encouraged or aided another person to commit a crime. Nor is there accomplice liability even when the defendant knew that their actions would assist another person in committing a crime, so long as the defendant remained indifferent to the success or failure of that crime. AS 11.16.110(2) requires the State to prove that it was the defendant's intention to promote or facilitate the other person's conduct. Riley, 60 P.3d at 210, 221.
If the State proves that the defendant engaged in one or more of the unlawful acts specified in AS 11.16.110(2) (soliciting, encouraging, or aiding another person's erimi-nal conduct), and that the defendant did so with the culpable mental state specified in AS 11.16.110(2) (the intent to promote or facilitate the other person's eriminal conduct), then the defendant is accountable for conduct that was performed by someone else.
But as we also explained in Riley, the State's proof of a defendant's complicity under AS 11.16.110(2) means only that the defendant can be held accountable for the conduct of another person.4 Although AS 11.16.110(2) specifies the circumstances in which a defendant can be held vicariously liable for someone else's actions, the statute does not impose vicarious liability for someone else's culpable mental state. When the crime charged against the defendant requires proof, not only of conduct, but also of one or more culpable mental states, the State must prove that the defendant personally had the required culpable mental state(s).
In Riley, we gave the following example of how the culpable mental states of accomplices must be evaluated separately, even though all of the accomplices are jointly responsible for the criminal conduct:
Take, for instance, the situation [at common law] where two defendants are jointly accountable for a criminal homicide-one because he personally struck the fatal blow *659or inflicted the fatal wound, and the other under a theory of complicity because he encouraged or assisted the homicidal act. If one of the defendants acted in cold blood (i.e., with malice aforethought) while the other acted in the heat of passion, the one who acted with malice would be guilty of murder and the one who acted in the heat of passion would be guilty only of manslaughter. This was true regardless of which defendant was the perpetrator and which the accomplice.
Riley, 60 P.3d at 221.
To sum up this discussion: If the State proves the unlawful act and the culpable mental state specified in AS 11.16.110(@2)-i.e., the act of soliciting, encouraging, or aiding another person's unlawful act, coupled with an intent to promote or facilitate that unlawful act-then the defendant can be held accountable for conduct that was performed by another person. In such cases, when the jury considers whether the defendant committed the acts and/or caused the results that constitute the elements of the crime charged, the jury ean take into account not only the conduct that was performed by the defendant personally, but also the conduct performed by any other person for which the defendant shares responsibility as an accomplice.
On the other hand, when the jury considers whether the defendant had the culpable mental state(s) required for the crime charged, the defendant's guilt (or the defendant's level of guilt, in cases where the degree of guilt hinges on the defendant's eulpa-ble mental state) depends on the defendant's personal mental state, not the mental states of the defendant's accomplices.
The Peoni formulation of complicity in large measure restates, and certainly does not contradict, the definition of complicity that is codified in AS 11.16.110(2). Rather, the problem with the Peon formulation is that it fails to cover all of the details of the proof required by AS 11.16.110(2), and it is vague on the point that a defendant can be held accountable for another person's conduct, but not another person's mental state.
In past cases, these problems have not been fatal to any eriminal conviections-either because, under the facts of the case, the failure to track the statutory language was inconsequential, or because the lawyers' summations to the jury cured any omissions or clarified any ambiguities in the Peon instruction.
See, for instance, Hansen v. State, 845 P.2d 449 (Alaska App.1993), where the defendant acquiesced in a Peoni instruction at trial, but then challenged the instruction on appeal because the instruction failed to specify the culpable mental state codified in AS 11.16.110(2), "intent to promote or facilitate". We concluded that the Peoni instruction, coupled with other jury instructions dealing with accomplice lability, adequately conveyed this culpable mental state, and thus the deviation from the statutory language was not plain error. Id. at 459.
Nevertheless, when the issue of accomplice liability is raised, I encourage trial judges to inform juries of the requirements of AS 11.16.110(2). A Peoni instruction, in and of itself, is not error; but that instruction should be supplemented with another instruction that specifies the elements of our statutory definition of complicity.
. See Edward W. Cleary, McCormick on Evidence (2nd ed.1972), §§ 61-65, pp. 139-144.
. See, e.g., Hensel v. State, 604 P.2d 222, 238 (Alaska 1979); Carman v. State, 602 P.2d 1255, 1260 (Alaska 1979); Hansen v. State, 845 P.2d 449, 456 (Alaska App.1993); Bowell v. State, 728 P.2d 1220, 1224 (Alaska App.1986); Carman v. State, 658 P.2d 131, 137 (Alaska App.1983).
. Riley, 60 P.3d at 221.
. 60 P.3d at 221.