OPINION

RABINOWITZ, Justice.

I. INTRODUCTION

In this petition we are called upon to decide whether due process under Alaska’s Constitution requires that a criminal offense be predicated on proof of more than just simple civil negligence.

II. FACTS AND PROCEEDINGS

Respondent’s conviction stems from the Exxon Valdez incident. On March 24, 1989, Captain Joseph Hazelwood ran his ship aground off Bligh Reef and reported he was “evidently leaking some oil.” Eventually, eleven million gallons poured into Prince William Sound. A jury subsequently convicted Hazelwood of negligent discharge of oil.

The Court of Appeals reversed Hazel-wood’s conviction on the basis that some of the evidence admitted at trial had been derived from Hazelwood’s immunized oil spill report. The court held that these statements could not have been admitted even if they would inevitably have been discovered from an independent source. Hazelwood v. State, 836 P.2d 943 (Alaska App.1992). This Court reversed, holding that the inevitable discovery doctrine does apply to the immunity created by 33 U.S.C. § 1321(b)(5) for oil spill reports. State v. Hazelwood, 866 P.2d 827, 834 (Alaska 1993).

On remand, the Court of Appeals again reversed Hazelwood’s conviction. This time it held that Hazelwood should have been tried under a criminal negligence theory rather than the civil negligence standard of culpability. The court ruled that criminal convictions may be predicated on findings of simple or ordinary negligence only when the offense involves a heavily regulated commercial activity. Hazelwood v. State, 912 P.2d 1266, 1279 (Alaska App.1996). Since the application of former AS 46.03.790 is not restricted to heavily regulated industries, the Court of Appeals concluded that Hazelwood’s conviction under a civil negligence standard was a denial of due process. We granted the state’s petition for hearing and now reverse.

III.DISCUSSION

The difference between criminal and civil negligence although not major is distinct. Under both standards, a person acts “negligently” when he fails to perceive a substantial and unjustifiable risk that a particular result will occur.

The two tests part ways in their descriptions of the relevant unobserved risk. Under ordinary negligence, “the risk must be of such a nature and degree that the failure to perceive it constitutes a deviation from the standard of care that a reasonable person would observe in the situation.” Id. at 1278. Criminal negligence requires a greater risk. This standard is met only when the risk is

of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. Criminal negligence is something more than the slight degree of negligence necessary to support a civil action for damages and is negligence of a degree *878 so gross as to be deserving of ‘punishment.

Id. at 1278-79 n. 16 (emphasis added).

In essence, then, the criminal negligence standard requires the jury to find negligence so gross as to merit not just damages but also punishment. It does not spill over into recklessness; there is still no requirement that the defendant actually be aware of the risk of harm. However, criminal negligence does require a more culpable mental state than simple, ordinary negligence.1

The statute under which Hazelwood was convicted provides in relevant part:

A person may not discharge, cause to be discharged, or permit the discharge of petroleum ... into, or upon the waters or land of the state except in quantities, and at times and locations or under circumstances and conditions as the department may by regulation permit....

Former AS 46.03.790(a) (current AS 46.03.740). At the time of the alleged crime, a person who “negligently” violated this provision was guilty of a class B misdemeanor. Id.2

The Court of Appeals concluded that the unadorned use of the word “negligently” created an ambiguity as to whether the statute rests on criminal or ordinary negligence. Relying on its past decisions, the court held that criminal liability may be imposed on the basis of simple or ordinary negligence “only for offenses dealing with heavily regulated activities for which permits or licenses are required.” Hazelwood, 912 P.2d at 1279 (quoting Cole v. State, 828 P.2d 175, 178 (Alaska App.1992)).3

In defense of the Court of Appeals’ ruling, Hazelwood presents two lines of argument. First, he contends the guarantee of due process demands that criminal penalties be predicated on more than just ordinary negligence. He reads our precedents as requiring a mens rea of at least reckless culpability for criminal offenses. Second, Hazelwood maintains that the statute under which he was convicted itself incorporates the criminal negligence standard. We address each argument in turn.

A. Due Process and a Civil Negligence Mens Rea Standard

1. Alaska law

Hazelwood grounds his due process claim in our decisions in Hentzner v. State, 613 P.2d 821 (Alaska 1980); Kimoktoak v. State, 584 P.2d 25 (Alaska 1978); Alex v. State, 484 P.2d 677 (Alaska 1971); and Speidel v. State, 460 P.2d 77 (Alaska 1969). He contends that in each of these cases we required a showing of recklessness, or subjective awareness of wrongdoing, in order to sustain the criminal conviction.

These decisions stand for a common proposition: that criminal convictions must be predicated on criminal intent.4 In other words, there must be some level of *879mental culpability on the part of the defendant. However, this principle does not preclude a civil negligence standard. What it does mean is that we will generally read into a criminal statute some level of mens rea, “as opposed to strict criminal liability.” Alex, 484 P.2d at 681 (emphasis added); see also Kimoktoak, 584 P.2d at 29. It is strict liability, and not the negligence standard, which “is an exception to the rule which requires criminal intent.” State v. Rice, 626 P.2d 104, 108 (Alaska 1981). The requirement of criminal intent does “not emphasize a specific awareness of wrongfulness.” Alex, 484 P.2d at 681.5

The point is illustrated by State v. Guest, 583 P.2d 836 (Alaska 1978), and Rice, 626 P.2d at 104. In each case, we upheld the imposition of criminal sanctions on the basis of simple, ordinary negligence. Guest approved the Superior Court’s instruction that the defendant was not guilty of statutory rape if he reasonably believed his victim was of consenting age. In effect, we sustained prosecution on charges that the defendant was negligent as to the victim’s age. See Guest, 583 P.2d at 839 n. 5 (quoting Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 47, at 356-57 (1972)). Similarly, Rice read into a criminal prohibition on transportation of illegally taken game a requirement that the defendant was at least negligent as to the fact the game was illegally taken. See Rice, 626 P.2d at 110. In both cases, a mens rea of simple or ordinary negligence was made the basis of the offense.

2. Hazelwood’s conduct!circumstances distinction

Hazelwood distinguishes Rice and Guest on the ground that in each the negligence standard was applied only to the circumstances of the crime, not the underlying conduct. Due process, he maintains, still requires the government to demonstrate there was “volitional conduct of the prohibited act.”

Hazelwood’s conduct/circumstances distinction is untenable. As an initial matter, we note that nowhere do our due process precedents differentiate between the minimum mens rea for circumstances and conduct. Nor is there any reason to do so. In many cases, it is only the circumstances of the offense that render it objectionable. No one would suggest, for example, that Rice’s transportation of game would still have been criminally sanetionable had it not been taken illegally. The statute proscribes the underlying conduct only when the relevant circumstance is present. The same was true in Guest. Indeed, in both cases, had we not applied a negligence standard to the circumstance of the offense, it would have included no mens rea element whatsoever.

We think Hazelwood confuses volition with intent. While many crimes do not require that their .underlying action be carried out with a guilty mind, it is always a defense to prosecution that the conduct was not voluntary. In every case, the alleged infraction must have been the product of a free will, and not coercion, duress, or mental illness. Had terrorists boarded the Exxon Valdez, for example, and demanded that Ha-zelwood run his vessel onto Bligh Reef, the fact that he did so even with knowledge and purpose would be irrelevant. He could defend on the basis that his act was not voluntary, and thus could not be properly attributed to him. This is not the case here. Hazelwood faced no compulsion that would excuse his conduct at the time the Exxon Valdez rammed into Bligh Reef. While there is a voluntariness element to every criminal offense, because Hazelwood’s commissions were his and his alone, .this prerequisite is satisfied here.6

As noted above, it is firmly established in our jurisprudence that a mental state of simple or ordinary negligence can support a criminal conviction. Further decisions reveal, however, that in some situations more will be required, and sometimes less. Spei *880 del, 460 P.2d at 80, found a denial of due process where the defendant had been convicted of “simple neglectful or negligent failure to return a rented automobile.” In that case, we insisted on at least a finding of reckless culpability in order for criminal sanctions to be imposed.

On the other hand, elsewhere we have allowed the mens rea element to be dispensed with entirely. We have allowed strict liability to be read into “public welfare offenses.” See, e.g., Rice, 626 P.2d at 107. These public welfare offenses are proscriptions which “heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.” Morissette v. United States, 342 U.S. 246, 254, 72 S.Ct. 240, 245, 96 L.Ed. 288 (1952). See also Haxforth v. Idaho, 117 Idaho 189, 786 P.2d 580, 582 (App.1990) (four-part test). As a corollary, a mens rea requirement is imputed only when a serious penalty attaches. See Guest, 583 P.2d at 838; Kimoktoak, 584 P.2d at 29; and Speidel, 460 P.2d at 80; see also People v. Olson, 181 Mich.App. 348, 448 N.W.2d 845, 847 (1989). Also, no mental element will be required when a statute provides “clear legislative intent to the contrary.” Rice, 626 P.2d at 108; see also Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242-43, 2 L.Ed.2d 228 (1957) (“There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.”); cf. Gregory v. State, 717 P.2d 428, 430 (Alaska App.1986).

An explanation of why the simple or ordinary negligence standard is nevertheless appropriate in this case requires consideration of the reasons that variable levels of mens rea will satisfy due process for different offenses.

3. The strict liability tradition

The rule that a criminal offense exists at the intersection of a guilty act and a guilty mind is commonly viewed as the bedrock of criminal common law. Over two centuries ago, Blackstone wrote, “[T]o constitute a crime against human laws, there must first be a vicious will, and secondly an unlawful act consequent upon such a vicious will.” 4 Comm. 21. A century and a half later Bishop affirmed: “There can be no crime large or small without an evil mind.” 1 Bishop, Criminal Law (9th ed.1930) § 287.7

Yet throughout our common law history, a parallel tradition has allowed imposition of penalties without formal proof of criminal intent. An early version of strict liability, the law of deodands, has been traced back to early Western history. A deodand was an object that was forfeited to the Crown for directly or indirectly causing the death of a human being. See generally, Oliver Wendell Holmes, Jr., The Common Law 24-25 (1881). The original reasoning was that the instrument itself was guilty of the offense.

Although the deodand form was abolished in England in 1846, 9 & 10 Vict. c. 62, and never was incorporated into the American common law, see Parker-Harris Co. v. Tate, 135 Tenn. 509, 188 S.W. 54 (1916), its substance survives in contemporary in rem proceedings. The object itself, rather than its human owner, is formally charged. See, e.g., One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); United States v. 43 Gallons of Whiskey, 93 U.S. 188, 23 L.Ed. 846 (1876); United States v.1960 Bags of Coffee, 12 U.S.(8 Cranch) 398, 3 L.Ed. 602 (1814). The Supreme Court of the United States has recently affirmed that proof of the moral culpability of the owner is not a necessary predicate to these punitive forfeitures. See Bennis v. Michigan, — U.S.—, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996). Bennis upheld a modern-day deodand of sorts, allowing the state to seize and forfeit an automobile without any showing that the owner knew her husband might use the vehicle to solicit prostitutes. Id.

In the same year the deodand rule was repealed in England, a new practice began to develop in its place on both sides of the *881Atlantic. In Regina v. Woodrow, 15 M. & M. 404 (Exch.1846),the Court of Exchequer allowed the imposition of a £200 fine on a tobacco dealer for possession of adulterated tobacco, without evidence the dealer “had knowledge or cause to suspect” the product’s condition. Per Pollock, C.B., at 415, 416. The case was reaffirmed in Regina v. Stephens, L.R. 1 Q.B. 702 (1886). The Court accepted that a new class of offenses without a mens rea element had come into being. While many of these statutes were a product of technological change8 or modern sensibilities,9 and thus had no common law antecedent, others overlaid old crimes which had once included an intent element.10 The Court summed up the development in Cundy v. LeCocq, L.R. 13 Q.B.D. 207 (1884):

In old time, and as applicable to the common law or to earlier statutes the maxim [that in every criminal offense there must be a guilty mind] may have been of general application; but a difference has arisen owing to the greater precision of modern statutes. It is impossible now ... to apply the maxim generally to all statutes, and the substance of all the reported cases is that it is necessary to look at the object of each Act that is under consideration to see whether and how far knowledge is of the essence of the offence created.

Id. at 210 (Stephen, J.) (upholding strict liability conviction for selling alcohol to an intoxicated person).

On this shore, courts also began to allow penalties for certain offenses without proof of intent during this era. The practice first took root in Massachusetts, apparently quite independently of the English cases, and spread quickly from there.11 Again, crimes which had recently required criminal intent could now be punished without it.12

4. Theories of strict liability

Over the years, several authorities have attempted to define the appropriate role and scope of the strict liability offense. In 1933, Professor Sayre catalogued all such crimes appearing in reports. His classifications include sales of alcohol to minors, alcoholics, Indians, soldiers, students and slaves; sales of impure foods, particularly milk and butter; sales of misbranded articles; and various automobile and traffic regulations. See Sayre, supra n. 11, at 84-87. However, Professor Sayre was unable to avoid employing the broad categories of “Criminal Nuisances” and “General Police Regulations for the Safety, Health or Well-Being of the Community.” He recommends that strict liability crimes be enforced with light penalties, though he concedes this limit has not been followed. Id. at 72, 79-82. He concludes with the generality that the abandonment of mens rea is suited to situation's where the need for social order outweighs the need for individualized punishment.13 Id.

*882Some jurisdictions differentiate between offenses that are mala in se and mala prohi-bita, allowing strict liability only for the latter. See Sayre, supra n. 11, at 70 n. 55. Although this court has relied on this difference, these other jurisdictions’ decisions are of little guidance to us, as we have drawn the opposite conclusion from the distinction. See Hentzner, 613 P.2d at 826 (separate intent element not necessary for offenses that are mala in se).

Generally, those courts that dispense with criminal intent for crimes that are mala prohibited that is, not patently immoral, have followed the rationale that the legislature did not intend these new offenses to carry a mental element. The very meaning of ma-lum prohibitum is that it is wrong because it is prohibited. Common law crimes, which by their nature are wrongful, require scienter because moral culpability is inherent to the offense. The courts have reasoned, however, that when conduct is penalized only because of a legislative command, then the nature of the proscription derives solely from that mandate. If the statute did not include a mental element, then the crime was not meant to have one.

The malum in se /malum prohibitum distinction overlaps with another theme in this area, that of deference to legislative direction. Courts routinely hold that whether scienter is an element of a charged offense “is a question of legislative intent to be construed by the Court.” United States v. Balint, 258 U.S. 250, 252, 42 S.Ct. 301, 302, 66 L.Ed. 604 (1922). Even Morissette concedes that the concerns raised by the exclusion of mens rea “would not justify judicial disregard of a clear command to that effect from Congress.” Morissette, 342 U.S. at 254 n. 14, 72 S.Ct. at 245 n. 14. Compare State v. Rice, 626 P.2d 104, 108 (Alaska 1981). Since, by its terms, the malum prohibitum offense is a creature of statute rather than common law, it is here that courts will most often defer to legislative intent.

Although widely accepted, the mala in se and legislative discretion approaches in our view remain unsatisfactory. We note that even crimes which had traditionally required proof of criminal intent have been recharacterized as strict liability crimes. See, e.g., McCutcheon, 69 Ill. at 601; Baltimore & Susqu. Steam Co., 13 Md. at 186. Nevertheless, we reject any rule that grants the legislature unbridled discretion to impose strict liability crimes. An exception to the mens rea requirement for “clear legislative intent to the contrary” has the potential to swallow the rule. As we said in Speidel, even where a statute is explicit, due process will on occasion require a higher degree of culpability. 460 P.2d at 80 (replacing the negligence threshold of AS 28.35.026 with a recklessness standard).

5. The principle of reasonable deterrence

An appropriate place to begin an explanation for objective fault crimes14 is with the objections of those who would abolish them altogether. In Jerome Hall, Negligent Behavior Should Be Excluded from Penal Liability, 63 Colo. L.Rev. 632 (1963), Professor Hall challenges the alleged utility of sanctions based on negligence and strict liability. He contends crimes that are not based on subjective awareness of wrongdoing are, by their terms, not addressed to “the extremely important degree of individual freedom, autonomy, and awareness ... expressed in (voluntary) action by a normal adult.” Id. at 637. Merely negligent harm doers, contends Professor Hall, “have not in the least thought of their duty, their dangerous behavior, or any sanction.” Id. at 641 (footnote omitted).

The difficulty with this thesis is that it assumes legal regulations can operate only through the offender’s conscious reason. A rebuttal is supplied by Professor Hart:

the connexion between the threat of punishment and subsequent good behavior is not [always] of the rationalistic kind pic*883tured in the guiding-type of case. The threat of punishment is something which causes [the offender] to exert his faculties, rather than something which enters as a reason for conforming to the law when he is deliberating whether to break it or not. It is perhaps more like a goad than a guide. But there seems to me to be nothing disreputable in allowing the law to function in this way, and it is arguable that it functions in this way rather than in the rationalistic way more frequently than is generally allowed.

H.L.A. Hart, Punishment and Responsibility 134 (1968).

The law’s “goad,” rather than its guide, is also emphasized by Professor LaFave. He asks whether more than civil negligence should be required for a criminal offense, and concludes “that there is no need to choose one answer for all crimes.” His primary focus is on deterrence:

The principal policy question is whether the threat of punishment for objective fault will deter people from conducting themselves in such a way as to create risk to others. Though the matter is disputed, it would seem that some people can be made to think, before they act, about the possible consequences of acting, so that the existence of objective-fault crimes does tend to reduce risky conduct.... The point is that the legislature might, in the exercise of its police power, require subjective fault for some crimes and objective fault for other crimes.

1 LaFave at 337-38 (footnotes omitted).

It is here, grounded in a theory of reasonable deterrence, that any explanation for objective fault crimes must have its origins. Despite Professor Hall’s challenge, it cannot be disputed that the threat of punishment necessarily deters. Even when an offender does not of his own accord realize that his conduct is wrongful, he can in many cases be made to take care. Coercion that causes the offender to pay attention can serve important social aims that would not be achieved by proscriptions that only come into effect when the transgressor recognizes the harm in his or her behavior.

The fulcrum for deciding what level of intent is the absolute minimum for a particular offense is a question of when an expectation of individual conformity is reasonable. Due process under Alaska’s Constitution requires that social interests be weighed against those of the individual. While society’s interest in obtaining compliance with its regulations is strong, it can never outweigh the individual’s interest in freedom from substantial punishment for a violation he or she could not reasonably have been expected to avoid. The threshold question, then, is whether the defendant’s conduct is something which society could reasonably expect to deter.

The principle of reasonable deterrence allows the imposition of strict liability in some circumstances. Generally, a separate mental element need not be proved when the failure to abide by a rule is inherently unreasonable. This occurs, for instance, where a person’s conduct is hedged in by regulation, such that one may readily assume his or her routine decisions are guided by rules. Thus, strict liability is permitted for heavily regulated industries. See Cole v. State, 828 P.2d 175, 178 (Alaska App.1992). Persons operating in rule-laden environments, and whose actions have a substantial impact on public health, safety, or welfare, can reasonably be assumed aware of their governing codes.

Another type of law whose violation is inherently unreasonable is the malum in se offense. As we explained in Hentzner, these are crimes which “reasoning members of society regard as condemnable,” such that “awareness of the commission of the act necessarily carries with it an awareness of wrongdoing.” 613 P.2d at 826.

Finally, an exception exists for those regulations which call for only a modest fine. Generally, their underlying conduct is not so inherently unwholesome that it can be reasonably assumed the misdemeanant was aware of its wrongfulness. Indeed, these punishments usually aim to coerce the public at large, and are meant to influence behavior by their very infliction. There is no implied assumption that the transgressor reasonably should have been aware he or she had *884stepped outside the law. Broad strict liability of this sort normally would run afoul of due process,15 but here it is allowed because the penalties are light.

Reasonable deterrence, then, is the basic principle of the due process balance between individual and societal interests. The ultimate question is whether society can reasonably expect the individual to conform his or her conduct to the law. For the strict liability exceptions, a separate showing of a departure from social mores is unnecessary, as it can reasonably be presumed.16 This notion of a duty of reasonable social conformity undergirds the entire law of mens rea.

Within the confines of this understanding, we will defer to the legislature’s directives. It appropriately decides what conduct is inherently wrongful to reasoning members of society and when the social interest requires enforcement without mens rea. However, for deference to be accorded, it must be reasonably apparent that the enactment was in exercise of such judgment. Strict liability cannot be applied simply to expedite punishment when there is no reasonable expectation of deterrence.

6. The sufficiency of simple negligence

Outside of these strict liability exceptions, though, a separate showing of simple civil negligence is both necessary and sufficient under Alaska’s Constitution. Negligence, rather than gross negligence, is the minimum, not because we believe it is the necessary element of every prosecutor’s case; indeed, all courts have allowed a separate showing of mental culpability to be dispensed with altogether in some circumstances. Rather, the negligence standard is constitutionally permissible because it approximates what the due process guarantee aims at: an assurance that criminal penalties will be imposed only when the conduct at issue is something society can reasonably expect to deter.17

Partisans of the criminal negligence approach have expressed the concern that an ordinary negligence standard gives the criminal proceeding an unseemly resemblance to tort law. Commonwealth v. Heck, 341 Pa.Super. 183, 491 A.2d 212, 224 (1985), aff'd, 517 Pa. 192, 535 A.2d 575 (1987), which adopts criminal negligence as a minimum, notes that the civil law standard serves purposes unsuited to the “harshness of criminal punishment.” Tort aims simply to “shift the economic costs of injuries onto those responsible for them.”18 Id.

This desire to differentiate criminal proceedings from civil proceedings appears to *885drive the definition of criminal negligence. That standard is typically characterized as “something more” than ordinary negligence. See Andrews v. Director of Pub. Prosecutions, 26 Crim.App. Rep. 34 (1937) (“similar lack of care such as will constitute civil liability is not enough”) (Lord Atkin). Thus the only consensus and precision available in the definition of criminal negligence is that it is not civil negligence.19

This fear of tort standards is unfounded. In response to similar allegations that civil standards do not protect, the Michigan Supreme Court has noted that “[i]t is just as much a violation of the due process clause of the Constitution to take property as it is to take the liberty of a person.” People v. McMurchy, 249 Mich. 147, 228 N.W. 723 (1930). In other words, the same constitutional clause which governs the criminal prosecution would also govern a civil proceeding, and it is undisputed that due process is satisfied by the negligence standard in that forum.

We are not persuaded that the simple or ordinary civil negligence standard is inadequate to protect Hazelwood’s interests. We conclude that the Superior Court’s adoption of an ordinary civil negligence mens rea standard in its instructions to the jury did not constitute a denial of due process under article I, section 7 of the Alaska Constitution.

B. The Statute

Hazelwood next contends that the statute under which he was convicted, former AS 46.03.790(a), itself incorporates the criminal negligence mens rea standard. His argument is unconvincing. The legislature made “negligence” the standard of liability. Unadorned, this word is commonly understood to mean ordinary negligence, not criminal or gross negligence. Nowhere in the criminal code is an ordinary negligence standard applied through the words “civil negligence” or “ordinary negligence.” These added terms are used only when differentiating common negligence from criminal negligence. Otherwise, criminal negligence is always referred to specifically, and “negligence” always denotes ordinary, civil negligence.20

Hazelwood also contends that the legislative history of AS 46.03.790(a) points to an intent to incorporate a criminal negligence standard. Specifically, he relies on Governor Sheffield’s transmittal letter accompanying the proposed bill that eventually added the negligence standard to § 790.21 The letter states that the proposed change aims to

bring the existing provisions into conformity with language and penalty levels in the Revised Criminal Code....

[To this end, it recommends] changing the criminal “state of mind” provision from “willful” to “knowing,” for class A misdemeanors, while making clear that “negligent” violations are intended to be class B misdemeanors....

1984 Alaska Senate Journal 2079-80.

Hazelwood contends that the reference to the Revised Criminal Code suggests an intent to adopt the “criminal negligence” standard defined in the Code. We draw the opposite inference. The Governor’s letter exhibits an awareness of the Code and its provisions, which included the criminal negligence standard. Yet the letter only speaks of negligence, not the special criminal negligence test. We can only conclude that the Governor’s office knew of the criminal negligence provision and consciously chose to forego this more exacting standard in favor of simple negligence. This interpretation is consistent with the settled rule that a difference in language implies a dif*886ference in meaning. See Neal v. Honeywell, Inc., 33 F.3d 860, 863 (7th Cir.1994); United Parcel Serv. v. State, Dep’t of Revenue, 102 Wash.2d 355, 687 P.2d 186, 191 (1984).

IV. CONCLUSION

The Superior Court’s adoption of an ordinary negligence standard was not erroneous. We therefore REVERSE the holding of the Court of Appeals on this issue. The case is remanded to the Court of Appeals for consideration of any unresolved issues originally raised by Hazelwood on appeal.22

EASTAUGH and FAJBE, JJ., not participating.

COMPTON, Chief Justice,

dissenting.

I. INTRODUCTION

I am not persuaded that a criminal offense can be predicated on proof of civil negligence. In my view, neither existing precedent nor public policy supports such a result. I therefore dissent.

II. DISCUSSION

A. The Ambiguity as to the Required Mens Rea under Former AS U6. OS. 790(a) Mandates Application of the Criminal Negligence Standard.

The court does not deny that there is an ambiguity as to the mens rea required for conviction under former AS 46.03.790(a).1 “Ambiguities in criminal statutes must be narrowly read and construed strictly against the government.” State v. Andrews, 707 P.2d 900, 907 (Alaska App.1985), opinion adopted by State v. Andrews, 723 P.2d 85, 86 (Alaska 1986); see also Wells v. State, 706 P.2d 711, 713 (Alaska App.1985) (“It is well established that, in accordance with the rule of lenity, ambiguities in penal statutes must be resolved in favor of the accused.”); Manderson v. State, 655 P.2d 1320, 1323 (Alaska App.1983) (“Since the provision is ambiguous and both the state’s and [the defendant’s] interpretations are arguably reasonable, we agree that [the defendant’s interpretation] should prevail under the Bell [v. U.S., 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955)] ‘rule of lenity.’ ”). Accordingly, the statute must be construed to require criminal negligence, rather than civil negligence.2 That should end the discussion.

B. Alaska Precedent Mandates Application of a Criminal Negligence Standard.

Turning to the merits of the decision, the opinion of the court does considerable violence to precedent. In Speidel v. State, 460 P.2d 77 (Alaska 1969), we expressly rejected a civil negligence standard as defining the minimum mens rea for criminal punishment. See id. at 80 (“To convict a person of a felony ... without proving criminal intent, is to deprive such person of due process of law.”). The court articulates no basis for distinguishing Speidel, 3 I see no basis for concluding *887that Speidel does not control, or that it does not require application of a criminal negligence standard.

Many of the decisions upon which the court relies reject strict liability rather than civil negligence, as the court states. Maj. op. at 879. However, these decisions in fact do not authorize civil negligence as the minimum mens rea for criminal punishment. See, e.g., Hentzner v. State, 613 P.2d 821, 825 (Alaska 1980) (requiring “an awareness of wrongdoing” for criminal liability); Alex v. State, 484 P.2d 677, 682 (Alaska 1971) (holding that crime of escape required intentional departure from custody); Kimoktoak v. State, 584 P.2d 25, 29-30 (Alaska 1978) (implying in a criminal hit-and-run statute a' requirement that the defendant have knowingly failed to stop and render assistance), superseded by statute on other grounds as noted in Wylie v. State, 797 P.2d 651, 660 n. 8 (Alaska App.1990). Demonstrably, these cases do not support the proposition that a civil negligence standard provides the minimum mens rea for a criminal conviction. To the contrary, these decisions reject a strict liability standard not in favor of a civil negligence standard but in favor of a requirement of “criminal intent.” See, e.g., Hentzner, 613 P.2d at 825 (“[Cjriminal intent is an essential predicate of criminal liability.”); Kimoktoak, 584 P.2d at 29 (requiring “criminal intent” to support conviction); Alex, 484 P.2d at 681 (“[T]o constitute guilt there must be not only a wrongful act but a criminal intention.”). It could be argued, as the court concludes, that “criminal intent” means any mental state the legislature determines to be required for the particular crime, excepting only strict liability. However, in Alex, the court noted that for “criminal intent” to exist, “[it] is imperative ... that an accused’s act be other than simply inadvertent or neglectful.” Alex, 484 P.2d at 681 (emphasis added). This statement indicates that “criminal intent” entails something more than mere “neglectfulness” or ordinary negligence. This interpretation is strengthened by the fact that the cited decisions all rest upon, and refer with approval to, our decision in Speidel. See, e.g., Hentzner, 613 P.2d at 827; Kimoktoak, 584 P.2d at 29; Alex, 484 P.2d at 681. As noted, Speidel rejected a civil negligence standard in favor of a “criminal intent” requirement. Speidel, 460 P.2d at 80. “Criminal intent,” as defined in Alex and Speidel, does not include civil negligence.

The court bases much of its argument on State v. Guest, 583 P.2d 836 (Alaska 1978), in which the defendant was accused of statutory rape. We noted that “the charge of statutory rape is legally unsupportable under the principles of Speidel, Alex, and Kimoktoak unless a defense of reasonable mistake of age is allowed.” Id. at 839. To fail to do so would be “to impose criminal liability without any criminal mental element.” Id. We then observed that

Although AS 11.15.120 is. silent as to any requirement of intent, this is true of many felony statutes. The requirement of criminal intent is then commonly inferred. In fact, in such cases, where the particular statute is not a public welfare type of offense, either a requirement of criminal intent must be read into the statute or it must be found unconstitutional. Since statutes should be construed where possible to avoid unconstitutionality, it is necessary here to infer a requirement of criminal intent.

Id. (citations and footnotes omitted).

The court mischaracterizes Guest in asserting that we “upheld the imposition of criminal sanctions on the basis of simple, ordinary negligence.” Maj. op. at 879. To the contrary, the issue in Guest involved only whether the defendant’s “reasonable belief’ that the victim was of the age of consent negated the criminal intent necessarily implied in the statute. Guest, 583 P.2d at 839-40. The crime itself involved a separate mental state. The discussion in Guest concerning “reasonable belief,” which the court *888wrongly equates with “simple negligence,”4 involved only the defense, and had no bearing on the core elements required for conviction of the charged offense itself. Quest did not authorize conviction for “simple negligence,” as the court asserts. Moreover, Guest did not overrule Speidel. Since Speidel remains good law notwithstanding Guest, it is incorrect to assert that Guest approved a civil negligence standard in all cases, as does the court. Since the ease at bar considers the “criminal intent” requirement in the context of a core element of the crime in question, rather than in the context of a defense, Guest does not apply.

Our jurisprudence recognizes several exceptions to the minimum “criminal intent” requirement outlined in the above eases. None of these exceptions are applicable, nor does the court purport to apply any of them.

Speidel recognized an exception for “public welfare” offenses, which relate to the “health, safety, and welfare” of the public, and which carry penalties that “commonly are relatively small, and [do] no grave damage to an offender’s reputation.” Speidel, 460 P.2d at 78-79 (citing Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952)). The crime at issue here carries too severe a potential penalty — imprisonment for ninety days — to fall within this exception. See State v. Rice, 626 P.2d 104, 116 (Alaska 1981) (Matthews, J., concurring) (“[A]ny prison sentence is an important, even traumatic, event in the life of a human being_ Further, any prison sentence is likely to have a considerable detrimental effect on one’s reputation.”).

We also have recognized an exception for activities within a “heavily regulated industry.” See id. at 107-08. Under that exception, participants in heavily regulated activities have a reduced due process interest as a consequence of that participation, and therefore may be subject to criminal liability under a less culpable mens rea than is ordinarily required. See Beran v. State, 705 P.2d 1280, 1292 (Alaska App.1985) (Bryner, C.J., concurring) (“[T]he state has a legitimate right to hold participants in the [commercial fishing] industry to a higher standard of care than might otherwise be appropriate as a predicate for criminal responsibility.”). As the captain of an oil tanker, Hazelwood certainly qualifies as a participant in a heavily regulated industry. However, former AS 46.03.790(a) applied not only to participants in oil production operations, but also to members of the general public. The statute therefore cannot be construed to require a mental state which could not apply to members of the general public, unless one accepts the troublesome proposition that a single passage in a statute can have different meanings for different defendants. For this reason, the court of appeals refused to apply the heavily regulated industry exception to this case. Hazelwood v. State, 912 P.2d 1266, 1279 (Alaska App.1996). The parties have not challenged that decision.

Since none of the exceptions to the minimum mens rea requirement of criminal intent apply, our precedent requires the application of a criminal negligence standard as we held in Speidel and Alex.

C. Public Policy Precludes Imposition of Criminal Penalties for Conduct That Is Merely Unreasonable under a Civil Standard.

The court accepts the imposition of criminal sanctions for any conduct which “is something which society could reasonably expect to deter.” Maj. op. at 883. The court acknowledges that this test affords the legislature complete discretion to impose criminal sanctions upon any conduct which is merely negligent under a civil standard. Maj. op. at 884-885. This approach is fraught with diffi*889cutties, and should not be adopted as a matter of policy.

In my view, notions of fundamental fairness, which underlie all due process issues, require a showing of something more than “failure to act reasonably5’ before a defendant may be subjected to imprisonment. See State v. Melendez, 172 Ariz. 68, 834 P.2d 154, 157 (1992) (“The touchstone of due process ... is fundamental fairness.”). Professor LaFave notes that a “general feeling” has arisen among judges that

[Sjomething more [i]s required for criminal liability than the ordinary negligence which is sufficient for tort liability. The thought [i]s this: When it comes to compensating an injured person for damages suffered, the one who has negligently injured an innocent victim ought to pay for it; but when the problem is one of whether to impose criminal punishment on the one who caused the injury, then something extra — beyond ordinary negligence — should be required.

1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law 326 (1986). This position is persuasive. Civil negligence provides an acceptable standard of fault for allocating any burden which neglectful conduct creates. However, that standard does not provide an adequate basis for levying a separate punishment on a neglectful person. In particular, a punishment of imprisonment is sufficiently severe that it should not be imposed, with the possible exception of the eases noted, for conduct which involves only civil negligence. The right to due process would support imprisonment for a truly gross deviation from “reasonable” conduct. It does not, in my view, support imprisonment for every deviation whatsoever from “reasonableness.”

Our current definition of criminal negligence demonstrates the prevailing view that something greater than civil negligence should be required to authorize criminal sanctions. Alaska Pattern Jury Instruction (Criminal) 81.900(a)(4) provides that “[cjrimi-nal negligence is something more than the slight degree of negligence necessary to support a civil action for damages and is negligence of a degree so gross as to be deserving of punishment.” This definition suggests that the “slight” degree of negligence required for civil negligence is not “deserving” of criminal punishment. Moreover, this standard is specifically calculated to “insure[ ] that proof of ordinary civil negligence will not give rise to criminal liability.” Commentary on the Alaska Revised Criminal Code, Senate Journal Supplement No. 47 at 142-43, 1978 Senate Journal 1399, quoted in Andrew v. State, 653 P.2d 1063, 1066 n. 5 (Aaska App.1982). Of course, the fact that the legislature has restricted criminal punishment to conduct which is more culpable than “slight” civil negligence does not render the legislature constitutionally forbidden to abrogate that restriction. However, the current definition of criminal negligence provides a persuasive argument that societal notions of fundamental fairness do not permit imprisonment for the simple neglectfulness embodied in the civil negligence standard. Such notions, in turn, shape the right to due process.

It is well established that “[mjere negligence is insufficient to justify an award of punitive damages.” Johnson & Higgins of Alaska Inc. v. Blomfield, 907 P.2d 1371, 1376 (Alaska 1995) (holding that punitive damages may only be awarded “where the wrongdoer’s conduct can be characterized as outrageous, such as acts done with malice or bad motives or a reckless indifference to the interests of others.”) (quoting Bridges v. Alaska Hous. Auth., 375 P.2d 696, 702 (Alaska 1962)); see also Restatement (Second) of Torts § 908 cmt. b (1965) (“Punitive damages are not awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence [but are restricted to] conduct involving some element of outrage similar to that usually found in crime.”). It is difficult to accept the proposition that an action which cannot form the basis for a punitive civil award fairly can be sanctioned with imprisonment. Admittedly, the prohibition of punitive damages for conduct which is merely negligent has not been constitutionalized. However, this prohibition provides yet another strong indication that judicially accepted notions of fairness foreclose the imposition of explicitly punitive measures for conduct which is negligent under a civil standard.

Since I cannot accept the proposition that imprisonment is a fundamentally fair punishment for civil negligence, I cannot support *890the court’s decision to remove all due process barriers to the criminalization of negligent conduct.5 Issues of substantive due process are issues of public policy at their most basic level. I cannot agree that public policy is served by giving legislators free rein to impose criminal sanctions upon whatever conduct a jury may find to be unreasonable.

III. CONCLUSION

I cannot agree, either as a matter of policy or a matter of precedent, that a person may be subjected to criminal liability upon a showing of civil negligence alone, except in rare circumstances. In my view, the heightened punishments contained in criminal statutes are constitutionally permissible only when a defendant is proven guilty of conduct that is, at a minimum, grossly negligent. I would affirm the decision of the court of appeals.

JUSTICE CERDA

delivered the opinion of the court:

The defendant, William J. Conley, was charged with two counts of aggravated battery based on permanent disability and great bodily harm. (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4(a).) He was found guilty after a jury trial of aggravated battery based solely on permanent disability on July 17, 1986. The defendant’s motions for judgment notwithstanding the verdict or a new trial were denied, and the defendant was sentenced to 30 months’ probation including 40 days of periodic imprisonment. On appeal, it is contended that: (1) the State failed to prove beyond a reasonable doubt that the victim incurred a permanent disability and that the defendant intended to inflict a permanent disability; (2) the trial court erred in prohibiting the defense from asking a State identification witness to describe the offender during defendant’s case in chief; (3) the trial court erred in allowing the admission of evidence elicited during State cross-examination that defense witnesses failed to tell police that the offender was another individual; (4) the State’s use during cross-examination and in closing argument of defendant’s pretrial silence deprived the defendant of a fair trial; and (5) the trial court erred in prohibiting defense counsel from arguing to the jury that the victim had a financial motive in securing a verdict and in telling the jury that financial motive was not in issue. For the following reasons, we affirm.

The defendant was charged with aggravated battery in connection with a fight which occurred at a party on September 28, 1985, in unincorporated Orland Township. Approximately 200 high school students attended the party and paid admission to drink unlimited beer. One of those students, Sean O’Connell, attended the party with several friends. At some point during the party, Sean’s group was approached by a group of 20 boys who apparently thought that someone in Sean’s group had said something derogatory. Sean’s group denied making a statement and said they did not want any trouble. Shortly thereafter, Sean and his friends decided to leave and began walking toward their car which was parked a half block south of the party.

A group of people were walking toward the party from across the street when someone from that group shouted “There’s those guys from the party.” Someone emerged from that group and approached Sean, who had been walking with his friend Marty Carroll *23810 to 15 steps behind two other friends, Glen Mazurowski and Dan Scurio. That individual demanded that Marty give him a can of beer from his six-pack. Marty refused, and the individual struck Sean in the face with a wine bottle, causing Sean to fall to the ground. The offender attempted to hit Marty, but missed as Marty was able to duck. Sean sustained broken upper and lower jaws and four broken bones in the area between the bridge of his nose and the lower left cheek. Sean lost one tooth and had root canal surgery to reposition 10 teeth that had been damaged. Expert testimony revealed that Sean has a permanent condition called mucosal mouth and permanent partial numbness in one lip. The expert also testified that the life expectancy of the damaged teeth might be diminished by a third or a half.

At trial, the State presented Officer Houlihan, Doctor Arnold S. Morof, and five occurrence witnesses. Of the five occurrence witnesses, only Marty Carroll identified Conley as the offender. The only other witness connecting Conley to the crime was another student, Demetrius Kereakas, who testified that he saw Conley throw a bottle at Dan Scurio’s car as the four boys left after the incident. The defense recalled State witness Marty Carroll and presented seven witnesses in addition to the defendant. Four of the defense witnesses testified that the defendant was not the offender, but rather that Sean was hit by a Robert Frazer, who is known in school as “Crazy Bob” or “Terminator.” The party was held at a residence surrounded by open fields. There were no streetlights and most of the witnesses had been drinking before the incident.

At the end of the trial, the jury was furnished with four verdict forms for the two counts of aggravated battery. The jury returned a guilty verdict for aggravated battery based on permanent disability, failing to sign the remaining verdict forms. The State’s Attorney advised the trial judge that the jury had returned only one verdict but that he had no objections. The trial court accepted the verdict and discharged the jury. It must be noted here that when a verdict on less than all the counts is accepted by the trial court and the jury is discharged, the jury’s silence as to other counts is treated as an acquittal on those counts for purposes of double jeopardy. (People v. Thurman (1983), 120 Ill. App. 3d 975, 979, 458 N.E.2d 1038, aff’d in part and rev’d in part on other grounds (1984), 104 Ill. 2d 326, 472 N.E.2d 414; People v. Rollins (1982), 108 Ill. App. 3d 480, 485, 438 N.E.2d 1322.) Therefore, had this court found it necessary to reverse and remand for a new trial, the defendant could not have been retried for aggravated battery based on great bodily harm.

*239 The defendant initially contends on appeal that the State failed to prove beyond a reasonable doubt that Sean O’Connell incurred a permanent disability. Section 12 — 4(a) of the Criminal Code of 1961 provides that: “[a] person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.” (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4(a).) The defendant contends there must be some disabling effect for an aggravated battery conviction based on permanent disability. The defendant does not dispute that Sean lost a tooth or that surgery was required to repair damaged teeth. The defendant also does not dispute that Sean will have permanent partial numbness in one lip or suffer from a condition called mucosal mouth. The defendant maintains, however, that there is no evidence as to how these injuries are disabling because there was no testimony of any tasks that can no longer be performed as a result of these injuries.

The parties cite no Illinois decisions, nor have we found any, defining permanent disability in the context of aggravated, battery. The State relies on People v. Post (1982), 109 Ill. App. 3d 482, 440 N.E.2d 631, and People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473, for the proposition that loss of function is not required for a finding of permanent disability. In Post, the victim had been stabbed once in the back and three times in the leg, but incurred only permanent scarring. The court affirmed the defendant’s conviction for aggravated battery based on permanent disability. However, Post is not dispositive of the issue as the defendant was also convicted of aggravated battery based on great bodily harm and disfigurement, and the defendant never raised the issue of sufficiency of the evidence regarding permanent disability. In Hicks, a young girl received severe burns on her chest caused by boiling water. Hicks is also not dispositive of the issue as the defendant was convicted of heinous battery. Thus, as the defendant points out in his reply brief, this appears to be a question of first impression.

The function of the courts in construing statutes is to ascertain and give effect to the intent of the legislature. (People v. Steppan (1985), 105 Ill. 2d 310, 316, 473 N.E.2d 1300.) The starting point for this task is the language itself (People v. Boykin (1983), 94 Ill. 2d 138, 141, 455 N.E.2d 1174), and the language should be given its plain and ordinary meaning. (Steppan, 105 Ill. 2d at 317; People v. Pettit (1984), 101 Ill. 2d 309, 313, 461 N.E.2d 991.) The defendant urges the court to adopt the definition found in Webster’s Third New International Dictionary which defines disability as an “inability to do *240something.” The State refers to additional language from the same source that a disability is a “physical or mental illness, injury, or condition that incapacitates in any way.” (Webster’s Third New International Dictionary 642 (1986).) There is some support for defendant’s proposed definition in an old Illinois decision. In Dahlberg v. People (1907), 225 Ill. 485, 80 N.E. 310, a woman was convicted of assault with intent to commit mayhem (aggravated battery incorporates the earlier offense of mayhem) after she threw red pepper at someone’s eyes and missed, hitting an innocent bystander in the eyes instead. Her conviction was reversed because the crime of attempt requires that the offender employ adequate means to accomplish the attempted result, and the evidence revealed that blindness could not have resulted had she succeeded. (Dahlberg, 225 Ill. at 490.) Thus, by necessary implication, anything short of blindness would not have supported a conviction for mayhem.

In arriving at a definition, however, it is also proper to consider the statute’s purpose and the evils sought to be remedied. (Steppan, 105 Ill. 2d at 316.) The Committee Comment explains that section 12 — 4(a) incorporates the old offense of mayhem. (Ill. Ann. Stat., ch. 38, par. 12 — 4(a), Committee Comment at 465 (Smith-Hurd 1979).) At common law the offense of mayhem required the dismemberment or disablement of some bodily part. Initially, the law sought to protect the King’s right to the military services of his subjects. However, modern criminal codes have expanded their protection against a wider range of injuries. As one court explained:

“What, then, originated as the narrow common law offense of mayhem is generally today a statutory offense of considerably larger dimensions. The transition has been accompanied, if not induced, by a shift in emphasis from the military and combative effects of the injury to' the preservation of the human body in normal functioning. The statutory counterparts of non-statutory mayhem doubtless include all that the common law proscribed. But what is important now is not the victim’s capacity for attack or defense, but the integrity of his person.” (Emphasis added.) (United States v. Cook (D.C. Cir. 1972), 462 F.2d 301, 303.)

Under this view, it seems apparent that for an injury to be deemed disabling, all that must be shown is that the victim is no longer whole such that the injured bodily portion or part no longer serves the body in the same manner as it did before the injury. Applying this standard to the case at hand, the injuries Sean O’Connell suffered are sufficient to constitute a permanent disability. Sean will en*241dure permanent partial numbness in one lip and mucosal mouth.1 He lost one tooth and there is also a chance he may lose some teeth before attaining the age of seventy.

The defendant further argues that the State failed to prove beyond a reasonable doubt that he intended to inflict any permanent disability. The thrust of defendant’s argument is that under section 12 — 4(a), a person must intend to bring about the particular harm defined in the statute. The defendant asserts that while it may be inferred from his conduct that he intended to cause harm, it does not follow that he intended to cause permanent disability. The State contends it is not necessary that the defendant intended to bring about the particular injuries that resulted. The State maintains it met its burden by showing that the defendant intentionally struck Sean.

The law on this question is unclear. The defendant relies upon People v. Crosser (1983), 117 Ill. App. 3d 24, 27, 452 N.E.2d 857, and Bay State Insurance Co. v. Wilson (1982), 108 Ill. App. 3d 1096, 440 N.E.2d 131, which both hold that aggravated battery is a specific intent crime. The State, however, relies upon People v. Allen (1969), 117 Ill. App. 2d 20, 254 N.E.2d 103. In Allen, the court wrote that in committing the offense of aggravated battery, “the only mental state required is that the accused knowingly and intentionally cause the social harm defined in the statute, no premeditation or malice being necessary.” (Allen, 117 Ill. App. 2d at 27-28.) The court then went on to state that it is not necessary that the defendant intended to cause the particular injury which resulted. (Allen, 117 Ill. App. 2d at 28.) Resolution of this issue is made difficult as there exist inconsistent decisions within the first district. Allen is cited with approval by the third division in People v. Perry (1974), 19 Ill. App. 3d 254, 259, 311 N.E.2d 341; however, specific intent analysis is applied in another decision by the third division in People v. Farrell (1980), 89 Ill. App. 3d 262, 264-65, 411 N.E.2d 927. The fifth division has also produced inconsistent decisions. In People v. Gomez (1986), 141 Ill. App. 3d 935, 939, 491 N.E.2d 68, it was stated that aggravated battery is a specific intent crime. However, just the opposite was written in People v. Gvojic (1987), 160 Ill. App. 3d 1065, 1069, 513 N.E.2d 1083.

For proper resolution of this issue, it is best to return to the statutory language. Section 12 — 4(a) employs the terms “inten*242tionally or knowingly” to describe the required mental state. The relevant statutes state:

“4 — 4. Intent. A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 4.)

“4 — 5. Knowledge. A person knows or acts knowingly or with knowledge of:

(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5.)

Section 12 — 4(a) defines aggravated battery as the commission of a battery where the offender intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement. Because the offense is defined in terms of result, the State has the burden of proving beyond a reasonable doubt that the defendant either had a “conscious objective” to achieve the harm defined, or that the defendant was “consciously aware” that the harm defined was “practically certain to be caused by his conduct.” (See People v. Herr (1980), 87 Ill. App. 3d 819, 821, 409 N.E.2d 442.) This is the identical construction found in People v. Farrell (1980), 89 Ill. App. 3d 262, 264-65, 411 N.E.2d 927, which we conclude is the correct statement of the law.

Although the State must establish the specific intent to bring about great bodily harm, or permanent disability or disfigurement under section 12 — 4(a), problems of proof are alleviated to the extent that the ordinary presumption that one intends the natural and probable consequences of his actions shifts the burden of production, though not persuasion, to the defendant. (Farrell, 89 Ill. App. 3d at 265.) If the defendant presents evidence contrary to the presumption, then the presumption ceases to have effect, and the trier of fact considers all the evidence and the natural inferences drawn therefrom. (Farrell, 89 Ill. App. 3d at 265.) Intent can be inferred from the surrounding circumstances, the offender’s words, the weapon used, and the force of the blow. (See, e.g., Macklin v. Commonwealth Life & Accident Co. (1970), 121 Ill. App. 2d 119, 126-27, 257 N.E.2d 256.) As the defendant’s theory of the case was mistaken identity, there was no evidence introduced negating the presumption of intent. However, even if Conley had denied any intention to inflict permanent disability, the surrounding circumstances, the use of a bot-*243tie, the absence of warning and the force of the blow are facts from which the jury could reasonably infer the intent to cause permanent disability. Therefore, we find the evidence sufficient to support a finding of intent to cause permanent disability beyond a reasonable doubt.

The defendant next contends that the trial court improperly restricted the scope of his examination of State witness Marty Carroll during his case in chief. During the evening following the close of the prosecution’s case, Conley remembered having a conversation with Carroll at another party where Carroll allegedly made a statement inconsistent with his testimony. Advised of this development, the trial judge permitted the defendant to recall Carroll so that a foundation could be established for later impeachment when Conley testified. After a foundation had been laid, the trial court prohibited the defendant from pursuing an additional line of questioning when the State objected to questions asking Carroll to describe the offender.

The defendant’s argument assumes that People v. Aughinbaugh (1967), 36 Ill. 2d 320, 223 N.E.2d 117, and People v. Morris (1964), 30 Ill. 2d 406, 197 N.E.2d 433, are controlling. These decisions hold that where identification is a principal issue at trial, the defendant is entitled to wide latitude in conducting cross-examination of identification witnesses. These decisions, however, are limited to cross-examination during the State’s case in chief. It is well established in Illinois that the decision to recall a witness for further cross-examination after the close of the adversary’s case is within the sound discretion of the trial court. (People v. Smith (1986), 149 Ill. App. 3d 145, 152, 500 N.E.2d 605.) The trial court’s decision on this matter will not be reversed absent a clear abuse of discretion. (Smith, 149 Ill. App. 3d at 152.) In People v. Dorsey (1982), 109 Ill. App. 3d 218, 440 N.E.2d 394, the defendant argued that his right to due process was violated when the trial court denied his request to recall three witnesses for additional cross-examination in his case in chief. The court held that there was no abuse of discretion where the defendant had an opportunity to cross-examine the witnesses, the questions the defendant wished to ask could have been presented at defendant’s previous cross-examination during the State’s case, and the evidence the defendant hoped to introduce had little probative value. (Dorsey, 109 Ill. App. 3d at 229. See also People v. Lewis (1980), 89 Ill. App. 3d 840, 845, 412 N.E.2d 565.) Here, the defendant had an opportunity to cross-examine Marty Carroll during the State’s case and his questions regarding the offender’s description *244should have been presented at that time. Therefore, there was no abuse of discretion in prohibiting the defendant from pursuing this line of questioning.

Next, the defendant argues that the trial court erred in permitting improper impeachment of four defense witnesses. Matt Tanzer, Kevin McGinley, and Joseph Longhini testified they were present when Sean was hit and that Bob Frazer, and not the defendant, was the culprit. Scott Bucich testified that he observed the defendant in a different altercation not involving Sean. On cross-examination, the witnesses admitted they failed to volunteer this information to the police which may have exonerated the defendant. The defendant maintains that the trial court erroneously overruled his objections for lack of foundation because there was no showing that the police or other authority ever questioned these witnesses. The defendant relies on People v. Fabian (1976), 42 Ill. App. 3d 934, 356 N.E.2d 982, construing that decision to hold that a witness’ failure to volunteer knowledge of a murderer’s identity to police during earlier conversations was not impeaching because the police never inquired as to his ability to identify the offender. Defendant’s reliance on Fabian is misplaced, however, as the issue in Fabian was the weight, and not the admissibility, of the evidence in determining whether the defendant was proved guilty beyond a reasonable doubt. Fabian, 42 Ill. App. 3d at 938.

The rule for impeachment by omission is that it is permissible to use prior silence to discredit a witness’ testimony if: (1) it is shown that the witness had an opportunity to make a statement, and (2) under the circumstances, a person would normally have made the statement. (People v. McMath (1968), 104 Ill. App. 2d 302, 315, 244 N.E.2d 330, affd (1970), 45 Ill. 2d 33, 256 N.E.2d 835, cert. denied (1970), 400 U.S. 846, 27 L. Ed. 83, 91 S. Ct. 92.) At issue here is whether the State properly established the required evidentiary foundation for this impeachment. In People v. Taylor (1986), 141 Ill. App. 3d 839, 491 N.E.2d 3, two defense witnesses testified that the victim of a shooting had been shot by his own brother, and not by the defendant, when the brother fired a gun into a crowd during a street altercation. The witnesses admitted on cross-examination that they failed to go to the police with this information which may have exonerated the defendant. The court held this impeachment was proper because the witnesses, who were friends of the defendant, knew of the defendant’s arrest eight months before trial. (Taylor, 141 Ill. App. 3d at 845-46.) And in People v. Martinez (1979), 76 Ill. App. 3d 280, 284-85, 395 N.E.2d 86, this court ruled that a prosecu*245tor’s questions regarding a witness' failure to go to the police were permissible where the witness who was a friend of the accused waited eight months to tell his story supporting the defendant’s claim of self-defense. On the other hand, in People v. Watson (1981), 94 Ill. App. 3d 550, 557-58, 418 N.E.2d 1015, similar impeachment of an alibi witness was held improper for lack of foundation where the witness did not learn of the defendant’s alleged crime until five months after his arrest, and the State did not attempt to interview the witness despite receiving notice of defendant’s alibi defense. Read together, these decisions indicate that where a witness is a friend of the accused, and has had knowledge of the friend’s arrest before trial, evidence of the witness’ failure to give exculpatory information to the authorities is admissible to impeach an exculpatory story offered for the first time at trial. However, where the witness has not had sufficient notice, there must be evidence of other circumstances under which a reasonable person would have given exculpatory information to the authorities. For the case before us, resolution of this issue requires an examination of the pertinent testimony of each witness.

Matt Tanzer testified that he was a close friend of the defendant. Tanzer also testified that he had discussed the case with the defendant and other friends before trial. Although there was no testimony elicited on cross-examination as to how much time had elapsed before trial during which Tanzer knew of the defendant’s arrest, we do not believe this less than perfect examination to be reversible error. Thus, a sufficient foundation was established for impeaching Tanzer.

Joseph Longhini testified he had only known the defendant for less than a year and was not a close friend. However, Longhini also testified that he discussed the case with the defendant before trial and told him he would be available if the defendant needed him. Thus, a sufficient foundation was established.

Kevin McGinley testified that he was a close friend of the defendant. However, in addition to the absence of testimony indicating when he first learned of the defendant’s arrest, there was also no testimony that he had discussed the case with anyone. Moreover, no investigators for the police or the State ever questioned McGinley as to what he knew. Therefore, use of his prior silence was improper for lack of foundation.

Scott Bucich testified that he had known the defendant for a number of years. Bucich also testified that he discussed the case with the defendant before trial when the defendant called him to learn what Bucich knew of the incident. However, Bucich was a witness *246only to the defendant’s altercation with another individual named John O’Brien. Under these circumstances, a friend of the accused would not normally go to the police to volunteer information pertaining to a separate fight. Thus, the use of Bucich’s prior inaction was improper.

• 14, 15 Nonetheless, this court finds these errors to be harmless. Error is harmless where a reviewing court can safely conclude, after consideration of the totality of the evidence, that a trial without the error would not produce a different result. (People v. Warmack (1980), 83 Ill. 2d 112, 128-29, 413 N.E.2d 1254.) To say that the failure of McGinley and Bucich to volunteer information to the police affected the outcome of the case is speculative, especially in view of the fact that Tanzer and Longhini were properly impeached.

The fourth issue raised by the defendant is whether the State improperly used the defendant’s pretrial silence to impeach his mistaken identity theory in violation of the due process clause of the fourteenth amendment and Illinois evidentiary law. The State sought to discredit the mistaken identity theory as a recent fabrication since the defendant failed to inform the police about Bob Frazer, who the defendant claimed at trial to be the true offender. Examination of this issue must be in two parts as reference was made at trial to two separate occasions where the defendant did not inform the police of the identity of the individual claimed to be the true offender. We first address the State’s use of the defendant’s pre-arrest silence.

On October 7, Officer Houlihan visited Andrew High School and obtained permission to interview the defendant. Houlihan read the Miranda warnings to the defendant before proceeding with the interview. There was conflicting testimony as to what exactly the defendant had said during his interrogation at Andrew High School. Investigator Houlihan testified that Conley admitted to striking an individual he didn’t know with his fist and that the individual fell to the ground. The defendant, however, testified that he had told Houlihan that he fought an individual by the name of John O’Brien and that he gave a description of O’Brien to Houlihan. The defendant further testified that Houlihan stated he had a report of only one fight involving Sean O’Connell and asked him why his fight had not been reported. Conley responded that he didn’t know but that it probably was not reported because no one was hurt. Nevertheless, it is clear that Conley never mentioned the name of Bob Frazer to Houlihan when questioned about his activities at the party and that this fact was elicited during his cross-examination. The record reveals the following colloquy:

*247“Q. And so you saw Marty Carroll at the second Sandora party that you made?

A. Yes, I did.

Q. And he was pointing a finger at you?

A. He sure did.

Q. He said, ‘That’s the guy who hit Shawn with the bottle.’

A. Yes.

Q. You said to him, ‘It wasn’t me. I know who did it.’ Didn’t you say that?

A. Yes, I did.

Q. And you told Officer Houlihan who that was, didn’t you?

A. No, I did not tell him.

Q. I have nothing further.”

The defendant did not object to the State’s question because he felt that his silence could be adequately explained. On redirect, the defendant testified that he had not learned of Bob Frazer until two to three weeks after his interview with Houlihan. The defendant now argues that the State’s use of this silence was improper under Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. In Doyle v. Ohio, the United States Supreme Court held that use of a defendant’s post-arrest silence to impeach his exculpatory testimony offered for the first time at trial is a deprivation of due process of law. (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.) The court reasoned that silence following recitation of the Miranda warnings may be nothing more than the arrestee’s exercise of those rights and, therefore, post-arrest silence is always “insolubly ambiguous.” (Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244.) The Court further reasoned that implicit in the Miranda warnings is the promise that silence will carry no penalty should the accused invoke that right. (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.) Therefore, the Court concluded that it would be fundamentally unfair to permit use of such silence against the accused after inducing him to remain silent. (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.) Because Conley was successfully rehabilitated on redirect (cf. United States v. Wilkins (7th Cir. 1981), 659 F.2d 769, 776), we conclude that if the State’s use of Conley’s pre-arrest silence violated Doyle, such error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

• 17 Following redirect, however, the State again sought to impeach the defendant’s mistaken identity theory on recross, using the defendant’s post-arrest silence. On October 16, nine days after his in*248terview with Houlihan, the defendant participated in a lineup. At the conclusion of the lineup, the defendant was placed under arrest at which time no statements were made. The record does not reveal whether the defendant was advised of his Miranda rights, but it appears that Conley was not so advised immediately upon his arrest. Following the defendant’s rehabilitation on redirect, the State countered on recross with a reference to the defendant’s silence following his arrest. The record reveals the following colloquy:

“Q. You saw Houlihan on October the 16th, didn’t you?

A. I believe that was the date for the line-up. I’m not sure.

Q. And after the lineup, that’s when Officer Houlihan told you you’re under arrest, isn’t that right?

A. I believe so.

Q. And at that time you didn’t tell officer — .

DEFENSE COUNSEL: I’m objecting now.

THE COURT: Sustained.

PROSECUTOR: I have nothing further, Judge.”

The State contends, first, that its reference to Conley’s post-arrest silence did not deprive him of due process because he had not been advised of his Miranda rights upon arrest. The State relies upon Fletcher v. Weir (1982), 455 U.S. 603, 71 L. Ed. 2d 490, 102 S. Ct. 1309, which held that cross-examination as to post-arrest silence is permissible where such silence has not been induced by the governmental assurances embodied in the Miranda warnings. (Fletcher, 455 U.S. at 607, 71 L. Ed. 2d at 494, 102 S. Ct. at 1312.) The State also contends there was no “use” of silence because the State was prevented from completing the question when the trial court sustained the defendant’s objection, and the jury was instructed to disregard questions to which objections were sustained. (See Greer v. Miller (1987), 483 U.S. 756, 97 L. Ed. 2d 618, 107 S. Ct. 3102.) The defendant argues, however, that Fletcher is inapplicable because he had been advised of his Miranda rights nine days before his arrest at the October 7 interview. The defendant further contends that Greer v. Miller is inapposite because, unlike Greer, the trial court failed to immediately admonish the jury after sustaining his objection, and the prosecutor defied the trial court by mentioning the defendant’s silence in rebuttal argument. On the other hand, the defendant contends that the State’s inquiry into his post-arrest silence is in violation of Illinois evidentiary law even if he has not been deprived of due process. (See People v. McMullin (1985), 138 Ill. App. 3d 872, 486 N.E.2d 412.) Because Doyle establishes only a minimum constitutional threshold for fairness under the due process clause, each juris*249diction is free to define for itself when silence is more probative than prejudicial under its rules of evidence. (See Jenkins v. Anderson (1980), 447 U.S. 231, 240, 65 L. Ed. 2d 86, 96, 100 S. Ct. 2124, 2130.) The defendant’s silence was not admitted into evidence, however, as the trial court sustained the defendant’s objection. Thus, the defendant’s argument on this point is without merit.

We decline to hold that the Miranda warnings Conley received at the October 7 interrogation induced him to remain silent upon his arrest nine days later. Initially, we note that had Conley made incriminating statements during a second interrogation following arrest without being advised of his Miranda rights, Conley would be taking a position contrary to the one he advocates here— that is, Conley would be arguing that the Miranda warnings given nine days earlier are insufficient. (See People v. Rosario (1972), 4 Ill. App. 3d 642, 645-46, 281 N.E.2d 714.) Moreover, Conley agreed to talk with Officer Houlihan on October 7. If the Miranda warnings did not induce him to remain silent on October 7, then we cannot say those same warnings induced him to remain silent nine days later. Therefore, on the facts presented here, we do not believe Doyle applies.

Nonetheless, we further find that there was no “use” of the defendant’s post-arrest silence. In Greer v. Miller, the Supreme Court stated it was significant that in each of the cases in which it applied Doyle, the trial court had “permitted specific inquiry or argument respecting the defendant’s post-Miranda silence.” (Greer v. Miller, 483 U.S. at 764, 97 L. Ed. 2d at 629, 107 S. Ct. at 3108.) The Court concluded there was no Doyle violation because the trial court sustained the defendant’s objection, no further comments were made during the remainder of the trial, and the trial court instructed the jury to disregard questions to which objections were sustained. (Greer, 483 U.S. at 764, 97 L. Ed. 2d at 629, 107 S. Ct. at 3108.) Here, the trial court did not permit specific inquiry or argument. As in Greer, Conley’s objection was sustained. The jury was also instructed to disregard questions to which objections were sustained, and unlike Greer, the question posited to Conley was never completed. As to the prosecutor’s comment during rebuttal argument, the trial court sustained Conley’s objection and, thus, argument respecting Conley’s silence was not permitted.

The defendant distinguishes Greer on the ground that the trial court here did not admonish the jury after sustaining his objection. A careful reading of Greer reveals, however, that the admonishment referred to by the defendant was only a direction to “ignore [the] ques*250tion for the time being.” (Greer, 483 U.S. at 759, 97 L. Ed. 2d at 626, 107 S. Ct. at 3105.) No specific instruction was given. Further, as in Greer, Conley failed to request the trial court to give a specific instruction. (Greer, 483 U.S. at 764 n.5, 97 L. Ed. 2d at 629 n.5, 107 S. Ct. at 3108 n.5.) Therefore, we hold there was no specific inquiry or argument respecting Conley’s silence.

The defendant’s fifth and final contention is that he was improperly precluded from arguing to the jury that Sean’s family had a financial motive in securing a verdict due to the extensive dental work that had been performed. The defendant was attempting to discredit the credibility of State witness Demetrius Kereakas, who had testified that he identified Conley from a picture in an Andrew High School yearbook. The testimony revealed that Mr. O’Connell had visited Demetrius at Richards High School where Mr. O’Connell had given Demetrius the yearbook. The defendant argues that Kereakas’ credibility is suspect because no one besides Mr. O’Connell was present when Kereakas made the identification, and Mr. O’Connell may have pressured Kereakas into picking Conley.

Closing argument must be based on the evidence or on the reasonable inferences drawn therefrom. (People v. Bullock (1987), 154 Ill. App. 3d 266, 273, 507 N.E.2d 44.) The defendant correctly states that financial bias is a legitimate method of impeaching the credibility of a witness. (People v. Thompson (1979), 75 Ill. App. 3d 901, 903, 394 N.E.2d 422, 425.) Here, however, the individual with the alleged financial bias is Mr. O’Connell, who did not testify. Demetrius Kereakas has no financial interest, and Mr. O’Connell’s bias cannot be transferred to Kereakas. There was no evidence that Mr. O’Connell pressured Kereakas or engaged in suggestive conduct which could have led Kereakas to Conley’s photograph. Therefore, the trial court properly sustained the State’s objection to the defendant’s remarks.

The judgment of the circuit court is affirmed.

Judgment affirmed.

FREEMAN, P.J., and WHITE, J., concur.

HILL, J.:

Lance L. Miles appeals his conviction for trafficking in illegal drugs in violation of section 44-53-370(e)(3) of the South Carolina Code (Supp. 2016). He argues the trial court erred by: (1) instructing the jury, in reply to a question they posed during deliberation, that the State did not have to prove Miles knew the drugs were oxycodone; (2) denying his directed verdict motion; and (3) admitting three statements he contends were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We affirm.

I—I

While scanning parcels for illegal drugs at the Federal Express office in West Columbia, agents from the Lexington County Sheriffs Office became suspicious of a package. They arranged for a controlled delivery to the listed address, which was within an apartment complex. Surveilling the delivery, they observed the delivery person ring the doorbell and leave the package by the front door. A few moments later, an agent noticed Miles exit a nearby apartment and begin walking around the parking lot. The agent then saw a young female emerge from the delivery address. She looked at the box, got on her phone, quickly hung up and went back inside. Miles then got on his phone while walking towards the box. Miles picked up the box and started back to his apartment. Seeing the agents advancing to intercept him, he tried to ditch the box. The agents apprehended and handcuffed him.

Agent Edmonson immediately questioned Miles about the contents of the box. Miles claimed he did not know what was inside. Edmonson then asked if there were drugs inside the box; Miles responded there probably were, but he did not know what kind. At this point, Edmonson read Miles his Miranda rights and asked Miles again whether there were drugs in the box. Miles again responded the box could contain *158drugs, but he did not know what kind. Upon obtaining a search warrant and Miles’ consent, the agents opened the box and discovered three hundred pills that a chemist later testified contained a total of nine grams of oxycodone. Edmonson next asked Miles to write down everything he knew about the box and the drugs. Edmonson then reread Miles his Miranda rights, and Miles wrote a statement admitting he had been paid one hundred dollars to pick up the box, someone named “Mark” had called him to pick it up, and the “owner” was a “Stacks” from Tennessee.

Edmonson then wrote out two questions. First, “Did you know drugs are in the parcel ‘box’?” Miles wrote, “Yes.” The second question and answer—related to Miles’ admission that he had previously picked up packages for money—were redacted and not presented to the jury.

Miles was indicted for trafficking in illegal drugs, in violation of section 44-53-370(e)(3). He did not testify at his trial and moved unsuccessfully for directed verdict, arguing in part there was insufficient evidence he knew the box contained oxycodone. During the jury charge, the trial court gave the following instruction:

Mr. Miles is charged with trafficking in illegal drugs and in this case we are referring to [ojxycodone. The State must prove beyond a reasonable doubt that the Defendant knowingly delivered, purchased, brought into this state, provided financial assistance or otherwise aided, abetted, attempted or conspired to sell, deliver, purchase, or bring into this state and was knowingly in actual or constructive possession or knowingly attempted to become in actual or constructive possession] of the [o]xyeodone. Possession may be either ... actual or constructive.

The trial court charged that the State bore the burden of proving the amount of oxycodone was more than four grams. The trial court further instructed that the State had to prove criminal intent, which required a “conscious wrongdoing,” and that intent may be inferred from the conduct of the parties and other circumstances. After deliberating for some time, the jury asked the following question: “Does the [S]tate have to prove that the defendant knowingly brought into the state *159four grams or more of [ojxycodone or just any amount of illegal drugs in order to consider this trafficking?”

The trial court, over Miles’ objection, replied to the jury as follows:

[T]he law in South Carolina is the State does not have to prove that the Defendant knew that the drugs in the package were [ojxyeodone, just that he knew that the package contained illegal drugs. However, the State does have to prove beyond a reasonable doubt that the illegal drugs that were in the package w[ere] more than four grams of [ojxycodone.

The jury later returned with a verdict of guilty. Because Miles had at least two prior drug convictions, he was sentenced to the mandatory minimum term of twenty-five years, and ordered to pay a $100,000 fine.

II.

Miles’ primary argument on appeal is the trial court’s supplemental charge misinformed the jury that the State did not need to prove beyond a reasonable doubt that Miles knew the drug he possessed was oxycodone. We review jury instructions to determine whether they, as a whole, adequately communicate the law in light of the issues and evidence presented at trial. State v. Logan, 405 S.C. 83, 90, 747 S.E.2d 444, 448 (2013).

Section 44-53-370(e)(3) provides in part:

Any person who knowingly sells, manufactures, cultivates, delivers, purchases, or brings into this State, or who provides financial assistance or otherwise aids, abets, attempts, or conspires to sell, manufacture, cultivate, deliver, purchase, or bring into this State, or who is knowingly in actual or constructive possession or who knowingly attempts to become in actual or constructive possession of: ... four grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or 44-53-210, or four grams or more of any mixture containing any of these substances, is guilty of a felony which is known as “trafficking in illegal drugs”....

(emphases added).

Miles contends the term “knowingly” as used in subsection (e) applies to each element of the trafficking offense, including *160the specific type of drugs listed in (e)(3). The issue of whether trafficking requires proof that the defendant not only knowingly intended to “sell[ ], manufacture[ ], cultivate[ ] ...” or “posses[ ]” illegal drugs, but also had knowledge of the precise identity of the illegal drug being trafficked, has, surprisingly, never been addressed by our appellate courts.

We are mindful that “statutory interpretation begins (and often ends) with the text of the statute in question. Absent an ambiguity, there is nothing for a court to construe, that is, a court should not look beyond the statutory text to discern its meaning.” Smith v. Tiffany, 419 S.C. 548, 555-56, 799 S.E.2d 479, 483 (2017) (citations omitted).

Courts grapple often with that tricky adverb “knowingly.” In United States v. Jones, 471 F.3d 535, 538 (4th Cir. 2006), the court construed a federal statute that punished “[a] person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce ... with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense.” (quoting 18 U.S.C. § 2423(a) (2000 & Supp. 2003)). Rejecting the argument that the government was required to prove the defendant knew the person transported was a minor, Judge Wilkinson noted:

[Construction of the statute demonstrates that it does not require proof of the defendant’s knowledge of the victim’s minority. It is clear from the grammatical structure of § 2423(a) that the adverb “knowingly” modifies the verb “transports.” Adverbs generally modify verbs, and the thought that they would typically modify the infinite hereafters of statutory sentences would cause grammarians to recoil. We see nothing on the face of this statute to suggest that the modifying force of “knowingly” extends beyond the verb to other components of the offense.

Id. at 539.

The United States Supreme Court has not been so gun-shy about the adverb.1 They ordinarily read a “statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element.” Flores-Figueroa v. Unit*161ed States, 556 U.S. 646, 652, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009). They have also found “the word ‘knowingly’ applies not just to the statute’s verbs but also to the object of those verbs.” McFadden v. United States, — U.S. -, 135 S.Ct. 2298, 2304, 192 L.Ed.2d 260 (2015).

But the Court has not gone so far as to hold that a criminal statute that opens with “knowingly” invariably requires each element be proven by that level of intent. It is commonplace that “different elements of the same offense can require different mental states.” Staples v. United States, 511 U.S. 600, 609, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). Even in Flores-Figueroa, the Court acknowledged that “knowingly” does not always modify every element, particularly where the statutory sentences at issue “involve special contexts or ... background circumstances that call for such a reading.” 556 U.S. at 652, 129 S.Ct. 1886. The Court emphasized that “the inquiry into a sentence’s meaning is a contextual one.” Id.; see also Avis Rent A Car Sys., Inc. v. Hertz Corp., 782 F.2d 381, 385 (2d Cir. 1986) (“Fundamental to any task of interpretation is the principle that text must yield to context.”) (Friendly, J.).

Our duty is to determine legislative intent, and the text of the statute is often the best evidence of that intent. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). Yet the text “must be construed in context and in light of the intended purpose of the statute in a manner which harmonizes with its subject matter and accords with its general purpose.” Cabiness v. Town of James Island, 393 S.C. 176, 192, 712 S.E.2d 416, 425 (2011) (citation and internal quotations omitted).

We find that by using “knowingly” in subsection (e), the Legislature did not intend to require the State to prove a defendant knew the specific type of illegal drug he was trafficking. Section 44-53-370 is concerned with criminalizing numerous forms of conduct involving illegal drugs. Thus, subsection (c) decrees “[i]t shall be unlawful for any person knowingly or intentionally to possess a controlled substance,” subject to certain exceptions not relevant here. S.C. Code Ann. § 44-53-370(c) (Supp. 2016). Our supreme court has held the language now codified in subsection (c) requires the State to prove beyond a reasonable doubt that the defendant knew he *162possessed a “controlled substance.” State v. Attardo, 263 S.C. 546, 549, 211 S.E.2d 868, 869 (1975). Subsection (d) then sets forth the penalties for possession based on the type of controlled substance. S.C. Code Ann. § 44-53-370(d) (Supp. 2016).

This brings us to trafficking, subsection (e). Tellingly, our supreme court has explained “[i]t is the amount of [the controlled substance], rather than the criminal act, which triggers the trafficking statute, and distinguishes trafficking from distribution and simple possession.” State v. Raffaldt, 318 S.C. 110, 117, 456 S.E.2d 390, 394 (1995). While the court in Rajfaldt was not confronted with the mental state required for a trafficking conviction, that issue was addressed in State v. Taylor, 323 S.C. 162, 166, 473 S.E.2d 817, 819 (Ct. App. 1996). In Taylor, the defendant was charged with trafficking more than ten grams of crank, in violation of section 44-53-375(C) of the South Carolina Code (Supp. 1995), which contains language nearly identical to section 44-53-370(e), including placement of the adverb “knowingly.” Taylor argued the language required the trial court to charge the jury that “they could not find [her] guilty of trafficking in crank unless she knew there were ten grams or more.” Taylor, 323 S.C. at 167, 473 S.E.2d at 819. Relying on Raffaldt, we disagreed. Id.

Rajfaldt and Taylor illuminate the “special context” revealed by viewing section 44-53-370 as a whole. Because section 44-53-370(c) only requires knowledge that the substance is “controlled,” and because Rajfaldt and Taylor tell us the only difference between the elements of distribution and simple possession and the elements of trafficking is the amount of the controlled substance involved, there is no reason to suspect the Legislature meant to require knowledge of the specific type of controlled substance in trafficking prosecutions. Miles’ interpretation depends upon isolating “knowingly” in subsection (e) and extending its modifying reach not only to “possession,” but to the specific type of drugs listed. Magnifying individual words of a statute and insisting they be interpreted concretely can lead to strange results. One could, for example, myopically diagram subsection (e)(3) and conclude it criminalizes the possession of more than four grams of table salt, or even the conduct of the delivery person in this case. Further, were we to adopt Miles’ version of subsection (e), the State would have to convince the jury *163beyond a reasonable doubt the defendant not only knew the drugs were oxycodone, but also knew that oxycodone is a “morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-63-190 or 44-53-210, or ... any mixture containing any of these substances.” We doubt the Legislature, in passing the drug trafficking laws, meant to create a scenario where a defendant is culpable only if armed with a proficiency in chemistry on par with a pharmacist or Walter White.2 That is why considering the words in their surrounding environment is essential, especially here where the statute runs to nearly five-thousand words and represents the Legislature’s will in the massive field of drug interdiction. Given this background, “[i]f ever we are justified in reading a statute, not narrowly as through a keyhole, but in the broad light of the evils it aimed at and the good it hoped for, it is here.” United States ex rel Marcus v. Hess, 317 U.S. 537, 557, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (Jackson, J., dissenting).3

When a statute can be read in its ordinary sense, courts have no right to engineer an extraordinary one. That the Legislature titled the offense defined by subsection (e)(3) as “trafficking in illegal drugs” affirms our conclusion that a defendant need not know the precise identity of the controlled substance to be guilty. See Univ. of S.C. v. Elliott, 248 S.C. 218, 221, 149 S.E.2d 433, 434 (1966) (“[I]t is proper to consider the title or caption of an act in aid of construction to show the intent of the legislature.”). This sense becomes inescapable when we consider subsection (e)(3)’s reference to sections 44-53-190 and 44-53-210 of the South Carolina Code (Supp. 2016), which set forth Schedules I and II governing classification of controlled substances. While we can interpret statutes by bringing in rules of grammar, logic, and other tools, we must be careful not to construe common sense out.

Courts in many other states share our conclusion that proving the defendant knew the specific type of drug is not required in trafficking and other controlled substance of*164fenses. See, e.g., State v. Stefani, 142 Idaho 698, 132 P.3d 455, 461 (Idaho Ct. App. 2005); People v. Bolden, 62 Ill.App.3d 1009, 20 Ill.Dec. 79, 379 N.E.2d 912, 915 (1978); Com. v. Rodriguez, 415 Mass. 447, 614 N.E.2d 649, 653 (1993); State v. Ali, 775 N.W.2d 914, 919 (Minn. Ct. App. 2009); State v. Edwards, 257 N.J.Super. 1, 607 A.2d 1312, 1313 (App.Div.1992); State v. Engen, 164 Or.App. 591, 993 P.2d 161, 170 (1999); State v. Sartin, 200 Wis.2d 47, 546 N.W.2d 449, 455 (1996).

We cannot leave this issue without discussing the important canon of statutory construction that penal statutes are to be strictly construed. This rule of lenity applies when a criminal statute is ambiguous, and requires any doubt about a statute’s scope be resolved in the defendant’s favor. Berry v. State, 381 S.C. 630, 633, 675 S.E.2d 425, 426 (2009). But the rule of lenity is not a device to create ambiguity, nor should a court invoke it before considering the words of the statute in context. State v. Dawkins, 352 S.C. 162, 166-67, 573 S.E.2d 783, 785 (2002); State v. Firemen’s Ins. Co. of Newark, N.J., 164 S.C. 313, 162 S.E. 334, 338 (1931) (“The rule that a penal statute must be strictly construed does not prevent the courts from calling to their aid all the other rules of construction and giving each its appropriate scope, and is not violated by giving the words of the statute a reasonable meaning according to the sense in which they were intended, and disregarding ... even the demands of exact grammatical propriety.” (citation and internal quotations omitted)); see also United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) (court should rely on lenity only if, “[a]fter ‘seizing] every thing from which aid can be derived,’ ” it is “left with an ambiguous statute” (quoting United States v. Fisher, 6 U.S. (2 Cranch) 358, 386, 2 L.Ed. 304 (1805) (Marshall, C.J.))).

One of the foundations of the rule of lenity is the concept of fair notice—the idea that those trying to walk the straight and narrow are entitled to know where the line is drawn between innocent conduct and illegality. McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931) (“[I]t is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. *165To make the warning fair, so far as possible the line should be clear.”). The line for conduct involving contraband is not merely clear but fluorescent. At least since State v. Freeland, 106 S.C. 220, 91 S.E. 3 (1916), we have required a defendant to know or be willfully ignorant that he was dealing with contraband drugs to satisfy criminal intent. This removes innocent activity, inadvertence or accident from the law’s grasp. At any rate, we need not apply the rule of lenity here, as context has convinced us section 44-53-370(e)(3) does not require proof of knowledge of the specific identity of the controlled substance. Carter v. United States, 530 U.S. 255, 269, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (courts are required “to read into a statute only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct’ ”).

Another foundation of the rule of lenity is the separation of powers. Our Constitution commits the task of defining criminal offenses solely to the Legislative Branch. Bass, 404 U.S. at 347-48, 92 S.Ct. 515; United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820). If the Legislature believes our interpretation expands or is otherwise contrary to the scope it intended section 44-53-370(e)(3) and its harsh penalty scheme to have, it can amend the statute.

The trial judge’s instructions—including his initial charge that criminal intent consists of “conscious wrongdoing”—conveyed the pertinent legal standards to the jury. He further correctly charged that the State still bore the burden of proving the drug quantity and identity.

1—1 ⅜—i 1—4

Miles next argues he was entitled to a directed verdict because the State presented insufficient evidence that he knowingly trafficked oxycodone. As we have held, the State needed only to prove Miles knew the item was a controlled substance. Because there was evidence Miles possessed the box, the jury was free to infer he knew what was in it. As the assistant solicitor pointed out, the evidence was literally lying at Miles’ feet. See State v. Gore, 318 S.C. 157, 163, 456 S.E.2d 419, 422 (Ct. App. 1995) (“Possession gives rise to an inference of the possessor’s knowledge of the character of the substance.”). Of course, Miles also admitted he knew the box *166contained drugs. Viewing the evidence in the light most favorable to the State, these circumstances go far beyond mere suspicion. There was ample direct and substantial circumstantial evidence from which Miles’ guilt could be fairly and logically deduced. Rule 19, SCRCrimP; State v. Odems, 395 S.C. 582, 586, 720 S.E.2d 48, 50 (2011).

IV.

Miles contends the series of three statements he gave to law enforcement should have been suppressed because the agents engaged in the “question-first” manipulation of Miranda forbidden by Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), and State v. Navy, 386 S.C. 294, 688 S.E.2d 838 (2010). He asserts Agent Edmonson’s immediate questioning of him upon arrest was a custodial interrogation triggering Miranda. At trial, the State conceded as much and agreed not to present evidence of Miles’ first two statements. But, during a later bench conference, Miles agreed to their admissibility, which is unsurprising as this strategy allowed Miles to get his theory of the case—that he didn’t know what kind of drugs were in the package—before the jury without having to take the stand. See State v. Bryant, 372 S.C. 305, 642 S.E.2d 582 (2007) (stating an issue conceded at trial cannot be argued on appeal).

The issue of whether admission of Miles’ third, written statement violated Seibert and Navy is unpreserved. Miles did not raise these cases or the “question-first” principle to the trial court. See State v. Byers, 392 S.C. 438, 446, 710 S.E.2d 55, 59 (2011) (“For an admissibility error to be preserved, the objection must include a specific ground ‘if the specific ground was not apparent from the context.’ ” (quoting Rule 103(a)(1), SCRE)); In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004) (“In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court. In other words, the trial court must be given an opportunity to resolve the issue before it is presented to the appellate court.” (citation omitted)).

Even if the issue was preserved, any error in admitting the redacted written statement was harmless. The statement was cumulative and could not have reasonably *167contributed to the verdict. It did not contradict Miles’ earlier statements that he did not know the type of drugs in the box, and added he was paid one-hundred dollars to retrieve it. See State v. Martucci, 380 S.C. 232, 261, 669 S.E.2d 598, 614 (Ct. App. 2008) (“The admission of improper evidence is harmless where the evidence is merely cumulative to other evidence.”). We cannot imagine the vague references to others involved packed any punch with the jury.

V.

The trial court did not err in its supplemental instruction to the jury that the State was only required to prove Miles knowingly trafficked in a controlled substance. There was sufficient evidence to carry the case to the jury, and even if the Miranda issue was preserved, we find no prejudice. Miles’ conviction is therefore

AFFIRMED.

GEATHERS and MCDONALD, JJ., concur.

SATZ, Judge.

Defendant, Sandra Nations, owns and operates the Main Street Disco, in which police officers found a scantily clad sixteen year old girl “dancing” for “tips”. Consequently, defendant was charged with endangering the welfare of a child “less than seventeen years old,” § 568.050 RSMo 1978.1 Defendant was convicted and fined $1,000.00. Defendant appeals. We reverse.

Defendant contends the state failed to make a submissible case. Defendant failed to preserve this issue for review on appeal.2 We must, however, consider the issue of submissibility under the doctrine of plain error. It is manifest injustice for a trial court to submit a case to the fact finder on evidence insufficient to make a submissible case. E.g., State v. Russell, 581 S.W.2d 61, 63 (Mo.App.1979).

Specifically, defendant argues the state failed to show she knew the child was under seventeen and, therefore, failed to show she had the requisite intent to endanger the welfare of a child “less than seventeen years old.” We agree.

The pertinent part of § 568.050 provides:

“1. A person commits the crime of endangering the welfare of a child if:

(2) He knowingly encourages, aids or causes a child less than seventeen years old to engage in any conduct which causes or tends to cause the child to come within the provisions of subdivision (l)(c) .. of section 211.031, RSMo ....”

The reference to “subdivision (l)(c)” is to § 211.031.l(l)(c) RSMo (Supp. 1976), which was in effect when § 568.050 was enacted. This “subdivision” vested in the juvenile court exclusive original jurisdiction of any proceeding in which a child is alleged to be in need of care and treatment because “[t]he behavior, environment or associations of the child are injurious to his welfare or to the welfare of others”.3 *284Thus, § 568.050 requires the state to prove the defendant “knowingly” encouraged a child “less than seventeen years old” to engage in conduct tending to injure the child’s welfare, and “knowing” the child to be less than seventeen is a material element of the crime. See § 562.021.

“Knowingly” is a term of art, whose meaning is limited to the definition given to it by our present Criminal Code. Literally read, the Code defines “knowingly” as actual knowledge — “A person ‘acts knowingly’, or with knowledge, (1) with respect ... to attendant circumstances when he is aware ... that those circumstances exist _” (Emphasis original). § 562.016.3.4 So read, this definition of “knowingly” or “knowledge” excludes those cases in which “the fact [in issue] would have been known had not the person wilfully ‘shut his eyes’ in order to avoid knowing.” Perkins, Criminal Law 942 (2d ed. 1969). The Model Penal Code, the source of our Criminal Code, does not ex-elude these cases from its definition of “knowingly”. Instead, the Model Penal Code proposes that “[w]hen knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence_” (Emphasis added). Model Penal Code § 2.02(7) (Proposed Official Draft 1962). This definition sounds more like a restatement of the definition of “recklessly” than “knowingly”.5 The similarity is intentional. The Model Penal Code simply proposes that wilful blindness to a fact “be viewed as one of acting knowingly when what is involved is a matter of existing fact, but not when what is involved is the result of the defendant’s conduct, necessarily a matter of the future at the time of acting.” 6 Thus, as noted, the Model Penal Code proposes that “[w]hen knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence *285Model Penal Code § 2.02(7) (Proposed Official Draft 1962).

Our legislature, however, did not enact this proposed definition of “knowingly”. Although the definitions of “knowingly” and “recklessly” in our Criminal Code are almost identical to the primary definitions of these terms as proposed in the Model Penal Code, see Model Penal Code § 2.02(2)(b)-(c) (Proposed Official Draft 1962), the Model Penal Code’s proposed expanded definition of “knowingly”, encompassing wilful blindness of a fact, is absent from our Criminal Code. The sensible, if not compelling, inference is that our legislature rejected the expansion of the definition of “knowingly” to include wilful blindness of a fact and chose to limit the definition of “knowingly” to actual knowledge of the fact.7 Thus, in the instant case, the state’s burden was to show defendant actually was aware the child was under seventeen, a heavier burden than showing there was a “high probability” that defendant was aware the child was under seventeen. In short, the state’s burden was to prove defendant acted “knowingly”, not just “recklessly”. The state proved, however, that defendant acted “recklessly”, not “knowingly”. This we conclude from our review of the record.

In our review of the record, we do not weigh the evidence; rather, we simply determine whether there was sufficient proof for the fact finder to find the defendant guilty beyond a reasonable doubt. E.g., State v. Turner, 623 S.W.2d 4, 6 (Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982). In so doing, we consider only those facts and reasonable inferences favorable to the state. E.g., State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).

The record shows that, at the time of the incident, the child was sixteen years old. When the police arrived, the child was “dancing” on stage for “tips” with another female. The police watched her dance for some five to seven minutes before approaching defendant in the service area of the bar. Believing that one of the girls appeared to be “young,” the police questioned defendant about the child’s age. Defendant told them that both girls were of legal age and that she had checked the girls’ identification when she hired them. When the police questioned the child, she initially stated that she was eighteen but later admitted that she was only sixteen. She had no identification.

Aside from the child’s age, these facts were established by the testimony of a police officer. The state also called the child as a witness. Her testimony was no help to the state. She testified the defendant asked her for identification just prior to the police arriving, and she was merely crossing the stage to get her identification when the police took her into custody.8 Nor can the state secure help from the defendant’s testimony. She simply corroborated the child’s testimony; i.e., she asked the child for her identification; the child replied she would “show it to [her] in a minute”; the police then took the child into custody.

These facts simply show defendant was untruthful. Defendant could not have checked the child’s identification, because the child had no identification with her that day, the first day defendant “hired” the child. This does not prove that defendant knew the child was less than seventeen years old. At best, it proves defendant did not know or refused to learn'the child’s age. The latter is the best case for the state. But defendant’s refusal to learn the age of this “young” child who was “dancing” “scantily clad” in her disco bar simply proves that defendant was “aware of a *286high probability” that the child was under seventeen, or, stated otherwise, in the definitional language of our Criminal Code, proves that defendant was conscious of “a substantial and unjustifiable risk” that the child was under seventeen and that defendant’s disregard of the risk was a “gross deviation” from the norm. See § 562.016.-4. This, however, is not “knowledge” under our Criminal Code. It is “recklessness”, nothing more. Having failed to prove defendant knew the child’s age was less than seventeen, the state failed to make a submissible case.9

Judgment reversed.

SIMON, P.J., and KAROHL, J., concur.

WOODWARD, J.

The eagle suffers little birds to sing,

And is not careful what they mean thereby,

Knowing that with the shadow of his wings

He can at pleasure stint their melodyf.]

—Tamora, Titus Andronicus, Act 4, Scene 4 (W. Shakespeare)

In the instant case, we are called upon to decipher the meaning of the word “suffer,” and its analogs, “permit” and “allow.” Specifically, we must decide whether these terms, when used in rules governing the conduct of holders of a liquor license in Baltimore City, require proof of knowledge on the part of such licensees.

Appellant, Steven Kougl, owns Club Harem, a Baltimore tavern and adult entertainment business, and holds a liquor license for that location issued by appellee, the Board of Liquor License Commissioners for Baltimore City (“the Liquor Board”). On July 2, 2014, the Liquor Board charged Kougl with violating three Liquor Board Rules related to solicitation of prostitution, indecent exposure, and violation of public morals, all occurring on April 25, 2013, at Club Harem, when an employee exposed herself to an undercover police officer and then solicited sexual intercourse from the same officer. The Liquor Board found Kougl guilty of all three violations and ordered that his liquor license be suspended for one month. Kougl filed for judicial review in the Circuit Court for Baltimore City, which affirmed the decision of the Liquor Board.

On appeal to this Court, Kougl raises four questions for our review, which we have condensed and rephrased as two ques*317tions:1

1. Did the Liquor Board make sufficient findings of fact in support of the three charged violations of the Liquor Board Rules?

2. Did the Liquor Board err in concluding that Kougl was guilty of the three violations even though there was no evidence that Kougl had knowledge of his employee’s behavior?

For reasons set forth herein, we answer both questions in the affirmative, and thus reverse the judgment of the circuit court and remand the case to that court for entry of a judgment reversing the decision of the Liquor Board.

BACKGROUND

On April 25, 2013, Detective Fletcher Jackson, a Baltimore City police officer assigned to the Special Enforcement Section, entered Club Harem in plain clothes to conduct a prostitution investigation. Jamaica Brickhouse, a woman who worked at Club Harem, approached Det. Jackson at the bar and asked if she could join him. Det. Jackson said “sure,” and bought Brickhouse a drink. After some initial conversation, Brickhouse exposed her breasts to Det. Jackson. Brickhouse invited Det. Jackson to touch her breasts, which he did. Brickhouse then suggested a lap dance or a trip to “the VIP,” where they could “do whatever up there.” Det. Jackson asked how much it would cost him to have sex with Brickhouse; Brickhouse replied that it would cost $170 “for the room,” plus a tip for her services. Det. Jackson said that he could tip $100, and Brickhouse agreed. Brickhouse returned to the *318stage to perform, and Det. Jackson notified other officers. Brickhouse, however, was not issued a criminal summons until December 10, 2013, almost eight months later.2

Fifteen months after the incident, on July 2, 2014, the Liquor Board charged Kougl with violating three Liquor Board Rules related to solicitation of prostitution in violation of Rule 4.17(a), indecent exposure in violation of Rule 4.17(b), and violation of public morals in violation of Rule 4.18. On July 17, 2014, the Liquor Board held a hearing on the charges against Kougl. Det. Jackson was the only witness for the prosecution; Kougl testified in his own defense. The Liquor Board voted 2-1 that Kougl was guilty of the three violations3 and suspended his liquor license for one month.

On July 18, 2014, Kougl filed a Petition for Judicial Review in the circuit court. On March 2, 2015, Kougl filed his Memorandum, in which he argued that (1) the Liquor Board’s decision was not based on substantial evidence, because “[t]here [wa]s nothing in [Det. Jackson’s] testimony to indicate that the [licensee knew, allowed or permitted this type of activity, which is needed to sustain the violations”; (2) its decision was unreasonable and arbitrary, because the Chairman of the Liquor Board stated that a licensee “would be responsible for actions of an employee” regardless of “whether the [licensee knew or did not know or allowed or did not allow or permitted or did not permit” the prohibited activity; and (3) the Liquor Board failed to make specific findings of fact and conclusions of law as required. On April 15, 2015, the Liquor Board filed its Response to Kougl’s Memorandum, in which it contended that (1) its decision was based on substantial evidence; (2) its decision was reasonable; and (3) the Liquor Board made sufficient findings of fact and conclusions of law.

*319On May 22, 2015, the circuit court held oral argument and issued an oral ruling affirming the decision of the Liquor Board. On May 28, 2015, the court entered its order affirming the Liquor Board’s decision. On June 22, 2015, Kougl filed a timely notice of appeal.

STANDARD OF REVIEW

Maryland law provides by statute that the action of a local liquor board is presumed to be proper and places the burden of proof upon the licensee to show that the decision complained of was arbitrary, fraudulent, unsupported by substantial evidence, illegal, or against the public interest. Md.Code (1957, 2011 Repl. Vol), Art. 2B, § 16 — 101(e)(l)(i). This Court has explained appellate review of a Liquor Board’s decision as follows:

While the last sentence of § 16-101(e)(l)(i) expressly permits the trial court, under certain circumstances, to hear additional evidence, the court may hear such evidence only to ascertain the veracity of findings of fact and conclusions of law reached by the Board. As the section does not authorize appeals de novo, the trial court may not hear additional evidence on matters not addressed by the Board. This Court has consistently explained that judicial review of a decision by the Board is similar to review of decisions by most other administrative agencies. It is a cardinal rule of administrative appeals that a reviewing court ... shall apply the substantial evidence test to final decisions of an administrative agency such as the Board, but it must not itself make independent findings of fact or substitute its judgment for that of the agency.

Judicial review of administrative action differs from appellate review of a trial court judgment. In the latter context the appellate court will search the record for evidence to support the judgment and will sustain the judgment for a reason plainly appearing on the record whether or not the reason was expressly relied upon by the trial court. However, in judicial review of agency action the court may not uphold the agency order unless it is sustaina*320ble on the agency’s findings and for the reason stated by the agency.

Blackburn v. Bd. of Liquor License Comm’rs for Balt. City, 130 Md.App. 614, 623-24, 747 A.2d 725 (2000) (emphasis added) (citations and internal quotation marks omitted).

“Of course, the reviewing court may substitute its judgment for that of the [Liquor] Board on questions of law.” Id. at 624, 747 A.2d 725. In deciding whether to substitute its judgment on a question of law, a court should accord a degree of deference to the position of the administrative agency. Md. Aviation Admin. v. Noland, 386 Md. 556, 572, 873 A.2d 1145 (2005). “Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.” Id. “An agency conclusion will not be upheld upon review, however, if based upon an error of law.” Hoyle v. Bd. of Liquor License Comm’rs for Balt. City, 115 Md.App. 124, 129, 692 A.2d 1 (1997).

DISCUSSION

I.

Sufficient Findings of Fact

“There is no express requirement that the Board set forth specific findings of fact and conclusions of law. In order for any meaningful review to be conducted, however, the Board must do so, at least informally.” Blackburn, 130 Md.App. at 624, 747 A.2d 725 (citation omitted).

Kougl argues that the Liquor Board did not make sufficient findings of fact to allow for meaningful judicial review. Specifically, Kougl contends that the Liquor Board’s decision consists of the following two statements, neither of which contain any findings of fact:

All right. The verdict is responsible for all three charges. The police department is not on trial here. Mr. Kougl is. And bar owners or licensees are responsible for the conduct *321of their employees, as I have said before, in all cases, in all bars, in the city of Baltimore.

All right, my finding is responsible to all three charges and close him for one month, effective immediately.

According to Kougl, the above statements were insufficient to support a legal conclusion that Kougl violated the Rules at issue.

The Liquor Board responds that there is no requirement that it set forth specific findings of fact so long as its informal findings are sufficient to allow for “meaningful appellate review.” Furthermore, the Liquor Board argues that it made informal findings of fact that were “sufficient for this Court to determine whether substantial evidence supports the Board’s conclusion that Kougl violated the three Liquor Board Rules as charged.” We agree with the Liquor Board and shall explain.

As previously indicated, Kougl, as the licensee, was charged ■with violating Rules 4.17(a), 4.17(b), and 4.18. Rule 4.17 provides:

Sexual Practices and Obscenity

(a) No licensee shall permit or suffer his premises to be used for the purpose of any sexual activity, nor shall any licensee permit or suffer any employee, patron or frequenter to solicit any person for prostitution or other immoral purposes.

(b) No licensee shall permit or suffer any person to appear in any act or other performance with breasts or the lower torso uncovered; nor shall any licensee knowingly permit or suffer his premises to be used for the conduct, exhibition or performance of an obscene act or other performance.

(Emphasis added).

Rule 4.18 provides:

Illegal Conduct

*322No licensee shall commit or allow the commission on his premises of any act which shall be contrary to any federal, state or local statute, law or ordinance or against the public peace, safety, health, welfare, quiet or morals.[4]

At the conclusion of the hearing on the charges against Kougl, the following occurred:

CHAIRMAN WARD: All right. The verdict is responsible for all three charges. The police department is not on trial here. Mr. Kougl is. And bar owners or licensees are responsible for the conduct of their employees, as I have said before, in all cases, in all bars, in the city of Baltimore.

The only question now is punishment----

All right, my finding is responsible to all three charges and close him for one month, effective immediately. And I’d be glad to hear from the other commissioners.

*323COMMISSIONER JONES: I agree. I agree that there’s a guilty for all charges. It’s clear to me that this thing took place. I have confidence in the police department. If I didn’t, the system would have a great defect in it, so I agree to the one month close order.

CHAIRMAN WARD: Commissioner?

COMMISSIONER MOORE: I disagree. I don’t think that the evidence substantiates the charges. And I’m concerned that there was a lapse of eight months. And I think that is extraordinary. It is unusual and it is not acceptable practice. And I think that that argues against a finding of guilt. So I say no.

CHAIRMAN WARD: Two to one. You heard the thing, you heard the penalty, sir. Good luck to you.

(Emphasis added).

The excerpt above makes clear that Commissioner Jones expressly relied on Det. Jackson’s testimony, and Chairman Ward implicitly relied on such testimony. Moreover, Kougl, in his testimony, did not dispute any of the evidence presented in Det. Jackson’s testimony, so a finding of guilty necessarily meant that Chairman Ward and Commissioner Jones credited Det. Jackson’s testimony as true.5

Furthermore, a “Board Summary” was issued after the hearing, which set forth the factual basis for each violation:

Violation of Rule 4.17(a) “No licensee shall permit or suffer his premises to be used for the purpose of any sexual activity, nor shall any licensee permit or suffer any employee, patron or frequenter to solicit any person for prostitution or other immoral purposes.” (Re: April 25, 2013, *324dancer solicited undercover police officer for sexual intercourse ) GUILTY 2-1

Violation of Rule 4.17(b) “No licensee shall permit or suffer any person to appear in any act or other performance with breasts or the lower torso uncovered; no[r] shall any licensee knowingly permit or suffer his premises to be used for the conduct, exhibition or performance of an obscene act or other performance” (Re: April 25, 2013, dancer exposed herself to undercover police officer) GUILTY 2-1

Violation of Rule 4.18 “No licensee shall commit or allow the commission on his premises of any act which shall be contrary to any federal, state or local statue [sic], law or ordinance or against the public peace, safety, health, welfare, quiet or morals.” (Re: April 25, 2013, dancer solicited undercover police officer for sexual intercourse; dancer exposed herself to undercover police officer) GUILTY 2-1

(Italics added) (bold in original). The facts supporting each violation, as emphasized in italics above, tracks Det. Jackson’s testimony, and provides a sufficient factual basis to allow for meaningful judicial review.

II.

Strict Liability

Kougl argues that Rules 4.17 and 4.18 require some evidence or inference therefrom that Kougl suffered, permitted, or allowed solicitation and nudity to occur, and there was no evidence to support such a finding. According to Kougl, there was insufficient evidence for the Liquor Board to infer that Kougl permitted such conduct to occur “merely by reason that the dancer solicited the detective.”

The Liquor Board responds that the three violations “are, as a matter of law, strict liability offenses,” none of which require “a licensee’s knowledge of the impermissible conduct.” The Liquor Board analogizes Rules 4.17(a) and (b) to Rule 4.01(a), which prohibits sales of alcohol to minors, to argue that both Rules “contain[] both a strict liability prohibition and a second provision with a knowledge requirement.” As *325for Rule 4.18, the Liquor Board argues that it “contains no knowledge or mens rea language. Therefore, it describes a strict liability offense.” According to the Liquor Board, Kougl was found guilty of violating the strict liability portion of the Rules.

By virtue of its argument that the charged violations are strict liability offenses, the Liquor Board concedes that the evidence adduced at the hearing was insufficient to find that Kougl had actual or constructive knowledge of the violations. Upon review of the record, we agree that there was simply no evidence of Kougl’s actual or constructive knowledge of the violations.

Whether Rules 4.17 and 4.18 impose a strict liability standard on a licensee depends on the meaning of the words “suffer,” “permit,” and “allow” as used in the Rules. In determining the meaning of such words, “we apply well-settled rules of statutory construction, the cardinal rule of [which] is to ascertain and effectuate the intent of the Legislature.” Assateague Coastkeeper v. Md. Dep’t of Env’t, 200 Md.App. 665, 708-09, 28 A.3d 178 (2011) (citations and internal quotation marks omitted).

In so doing, we look first to the normal, plain meaning of the language of the statute, read as a whole so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory. If the language of a statute is clear and unambiguous, we need not look beyond the statute’s provisions and our analysis ends. Where the language of the statute is ambiguous and may be subject to more than one interpretation, however, we look to the statute’s legislative history, case law, purpose, structure, and overarching statutory scheme in aid of searching for the intention of the Legislature.

Whitley v. Md. State Bd. of Elections, 429 Md. 132, 149, 55 A.3d 37 (2012) (citations and internal quotation marks omitted).

*326In accord with the above standard, we turn to the plain meaning of the subject terms in the Rules. Black’s Law Dictionary defines “suffer” as:

To allow, to admit, or to permit. It includes knowledge of what is to be done under sufferance. To suffer an act to be done or a condition to exist is to permit or consent to it; to approve of it, and not to hinder it. It implies knowledge, a willingness of the mind and responsible control or ability to prevent.

Black’s Law Dictionary 1432 (6th ed.1990) (emphasis added) (citations omitted). “Permit” is defined as: “To suffer, allow, consent, let; to give leave or license; to acquiesce, by failure to prevent, or to expressly assent or agree to the doing of an act.” Id. at 1140. Finally, Black’s Law Dictionary defines “allow” as:

The word has no rigid or precise meaning, its import varying according to circumstances or context in connection with which it is used. It may mean to bestow or assign to any one as his right or due. To approve of, accept as true, admit, concede, adopt, or fix. To grant something as a deduction or an addition; to abate or deduct; as, to allow a sum for leakage. To sanction, either directly or indirectly, as opposed to merely suffering a thing to be done; to acquiesce in; to suffer; to tolerate.

Id. at 76 (emphasis added) (citations omitted).

No Maryland appellate opinion exists regarding the meaning of these words in the context of the Liquor Board Rules. Other jurisdictions that use “suffer,” “permit,” or “allow,” in their liquor board rules are divided on whether such terms impose a strict liability standard, or whether knowledge on the part of the licensee must be proven.

Wisconsin, Oregon, and New Jersey courts have held that their states’ liquor board rules, all of which use the words “suffer,” “permit,” or “allow,” impose strict liability on the part of the licensee. In City of West Allis v. Megna, the Supreme Court of Wisconsin held that an ordinance that stated that no licensee shall “either directly or indirectly *327suffer or permit any person of either sex under the age of 21 years ... to enter or be on such licensed premises for any purpose,” imposed a strict liability standard. 26 Wis.2d 545, 133 N.W.2d 252, 253 (1965). The Court determined that “[p]roof of knowledge on the part of the tavern keeper that the patron is actually under age is not required by the statute in order to obtain a conviction,” and that such standard “is a price that the operator pays for the privilege of becoming licensed.” Id. at 254.

Similarly, the Court of Appeals of Oregon held in DK Entertainment, LLC v. Oregon Liquor Control Commission that, when interpreting an ordinance stating that “ ‘[n]o licensee or permittee will permit any unlawful activity on the licensed premises or in areas the licensee controls that are adjacent to or outside the premises,’ ” the Oregon Liquor Control Commission “may impute to the licensee the knowledge of the licensees employees.” 249 Or.App. 659, 278 P.3d 112, 113 n. 2, 114 (2012). Finally, in Division of Alcoholic Beverage Control v. Maynards Inc., the Supreme Court of New Jersey held an ordinance providing that “[n]o licensee shall allow, permit or suffer in or upon the licensed premises any unlawful possession of or any unlawful activity pertaining to” narcotics and other controlled dangerous substances imposed a strict liability standard. 192 N.J. 158, 927 A.2d 525, 536 (2007). The Court noted that “[i]t has long been the law in New Jersey that, in the context of the regulation of alcoholic beverages, ‘the word suffer ... imposes responsibility on a licensee, regardless of knowledge, where there is a failure to prevent the prohibited conduct by those occupying the premises with his authority.’ ” Id. at 538 (ellipses and italics in original).

Conversely, other courts, such as those in Colorado, California, New York, and Washington, have held that the terms “suffer,” “permit,” or “allow” require actual or constructive knowledge. In Full Moon Saloon, Inc. v. City of Loveland, the Colorado Court of Appeals held that a statute making it unlawful to, among other things, “permit the sale, serving, giving, or procuring of any alcohol beverage to or for a person *328under the age of twenty-one years” required that “some level of knowledge by the licensee must be established by the evidence.” Ill P.3d 568, 569-70 (Colo.App.2005). The Court explained:

The word “permit” connotes affirmative or knowing conduct. Thus, licensees and their employees and agents “permit” such conduct if they have actual knowledge of the violation or have constructive knowledge that it is occurring.

Our conclusion that constructive knowledge of liquor code violations is sufficient to hold a licensee responsible for permitting the violation is consistent with cases from other jurisdictions. See Spitz v. Mun. Court, 127 Ariz. 405, 621 P.2d 911 (1980) (licensee is deemed to have constructive knowledge of the age of underage buyer if licensee provides alcohol to the minor and fails to follow certain procedures); Laube v. Stroh, 2 Cal.App.4th 364, 3 Cal.Rptr.2d 779 (1992) (to suspend liquor license, evidence must be presented that licensee had either actual or constructive knowledge of activity); Pinacoteca Corp. v. Dep’t of Bus. Regulation, 580 So.2d 881 (Fla.Dist.Ct.App.[4th DCA]1991) (where activity is persistent and recurring, licensee’s knowledge of the activity may be inferred); State v. Engberg, 109 Idaho 530, 708 P.2d 935 (Ct.App.1985) (violation may be found if licensee had constructive knowledge of the prohibited activity); Town & Country Lanes, Inc. v. Liquor Control Comm’n, 179 Mich.App. 649, 446 N.W.2d 335 (1989) (licensee violated liquor license rule by failing to exercise reasonable diligence to ascertain the age of underage customer); Leake v. Sarafan, 35 N.Y.2d 83, 358 N.Y.S.2d 749, 315 N.E.2d 796 (1974) (to sustain a violation, licensee must have knowledge of the activity or the opportunity through reasonable diligence to acquire knowledge of the alleged acts); Smith v. Bd. of Liquor Control, 96 Ohio App. 396, 121 N.E.2d 920 (1954) (licensee must have actual or constructive knowledge of prohibited activity) Tex. Alcoholic Beverage Comm’n v. Sanchez, 96 S.W.3d 483 (Tex.App.2002) (to suspend liquor *329license, evidence must be presented that licensee had either actual or constructive knowledge of activity); Reeb, Inc. v. Wash. State Liquor Control Bd., 24 Wash.App. 349, 600 P.2d 578 (1979) (to “permit” a violation, licensee must have actual or constructive knowledge of the activity).

Id. at 570-71 (emphasis added).

Similarly, in Laube v. Stroh, the Court of Appeal of California “h[e]ld that a licensee must have knowledge, either actual or constructive, before he or she can be found to have ‘permitted’ unacceptable conduct on a licensed premises.” 2 Cal.App.4th 364, 3 Cal.Rptr.2d 779, 788 (1992). The Court continued: “It defies logic to charge someone with permitting conduct of which they are not aware.” Id. Finally, the Court noted that “[failure to prevent the problem from recurring, once the licensee knows of it, is to ‘permit’ by a failure to take preventive action.” Id. at 789.

Likewise, in Leake, the Court of Appeals of New York noted the following regarding the statutory words “suffer” or “permit”:

There is no particular mystery or magic in the language of the statute. This court in Matter of Migliaccio v. O’Connell [307 N.Y. 566, 122 N.E.2d 914 (1955)] defined the intent of the statute when it stated that in considering what is implied by the phrase suffer or permit as employed in the statute quoted above, we are guided by what was written for this court (per Cardozo, J.) in People ex rel Price v. Sheffield Farms [225 N.Y. 25, 121 N.E. 474 (1918) ]: Sufferance as here prohibited implies knowledge or the opportunity through reasonable diligence to acquire knowledge. This presupposes in most cases a fair measure at least of continuity and permanence.

358 N.Y.S.2d 749, 315 N.E.2d at 797 (emphasis added) (citations and internal quotation marks omitted).

Finally, in Reeb, the Court of Appeals of Washington held: The word “permit” as used in the regulation does not imply that the licensee must have permanently sanctioned the prohibited act; it refers to the licensee’s actual or con*330structive knowledge of the circumstances which would foreseeably lead to the prohibited activity. Reeb was aware of the propensity of its dancers to engage in questionable conduct and chose nevertheless to maintain topless dancing on its licensed premises. Under these circumstances, the Board could find that Reeb permitted the conduct in violation of [the Liquor Board Rules]. This violation is sufficient to support the 7-day license suspension imposed by the Board.

600 P.2d at 581 (citation omitted).

Considering the plain meaning of the words “suffer,” “permit,” and “allow,” we conclude that the use of those words in Rules 4.17 and 4.18 necessarily require that “some level of knowledge by the licensee must be established by the evidence.” Full Moon Saloon, 111 P.3d at 569. As indicated above, the definition of “suffer” expressly states that “[i]t includes knowledge of what is to be done under sufferance.” Black’s Law Dictionary at 1432. The terms “permit” and “allow” also imply knowledge of what is to be permitted or allowed. See First Nat’l Bank & Trust Co. of Port Chester v. New York Title Ins. Co., 171 Misc. 854, 12 N.Y.S.2d 703, 709 (1939) (“It has been said that every definition of ‘suffer’ and ‘permit’ includes knowledge of what is to be done under the sufferance and permission, and intention that what is done is to be done.”).

We are fully cognizant of the strong public policy considerations behind requiring a strict liability standard in the Liquor Board Rules. Unlawful or immoral activities may be associated with places where alcoholic beverages are sold. However, one of the primary purposes of the Liquor Board Rules is to clearly inform licensees of their responsibilities regarding prohibited activities so that they can conform their conduct and the conduct of their businesses to be in compliance with the Rules. Interpreting the words used in the Liquor Board Rules at variance with their plain meaning does not advance the public purpose of achieving compliance with the Rules. Although we are obligated to give deference to the Liquor *331Board’s interpretation of its Rules, see Noland, 386 Md. at 572, 873 A.2d 1145, “[a]n agency conclusion will not be upheld upon review, however, if based upon an error of law,” Hoyle, 115 Md.App. at 129, 692 A.2d 1. Accordingly, we hold that the Liquor Board erred in interpreting the words “suffer,” “permit,” and “allow” in Rules 4.17 and 4.18 to impose a strict liability standard on licensees.6

We also hold that the knowledge requirement implicit in the terms “suffer,” “permit,” and “allow” can be satisfied by proof of either actual or constructive knowledge on the part of the licensee. See Full Moon Saloon, 111 P.3d at 570. Actual knowledge is, of course, actual awareness of the prohibited activity. Actual knowledge also includes the concept of “deliberate ignorance” or “willful blindness.” See Rice v. State, 136 Md.App. 593, 604, 766 A.2d 663 (2001). In State v. McCallum, Judge Chasanow explained the meaning of this form of knowledge in a concurring opinion:

There is more than one mental state that may constitute “knowledge.” The first and highest form of “knowledge” is actual knowledge, that is, an actual awareness or an actual belief that a fact exists. A second form of “knowledge” is what has often been called “deliberate ignorance” or “willful blindness.” R. Perkins, Criminal Law, Ch. 7, § 4 at 687 (1957). The latter form of “knowledge” exists where a person believes that it is probable that something is a fact, but deliberately shuts his or her eyes or avoids making reasonable inquiry with a conscious purpose to avoid learning the truth. See 1 W. LaFave & A. Scott, Substantive Criminal Law, § 3.5 at 307 (1986), and authorities cited therein. In United States v. Jewell, 532 F.2d 697 (9th Cir.), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976), the 9th Circuit Court of Appeals noted that the *332deliberate ignorance or willful blindness form of knowledge has been accepted by leading commentators in the United States and in England. The opinion quoted from Professor Glanville Williams’ Criminal Law: The General Part, § 57 at 157, 159 (2d ed.1961), as follows:

“To the requirement of actual knowledge there is one strictly limited exception.... [T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge____The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law.”

Id. at 700.

321 Md. 451, 458-59, 583 A.2d 250 (1991) (Chasanow, J., concurring) (emphasis added).

Constructive knowledge, however, implies knowledge where a licensee should have known of the prohibited activity if reasonable care and diligence had been exercised. See Leake, 358 N.Y.S.2d 749, 315 N.E.2d at 797 (stating that “it must be demonstrated that the licensee had knowledge or the opportunity through reasonable diligence to acquire knowledge of the alleged acts”); Morgan v. Bd. of Water Works of Pueblo, 837 P.2d 300, 303 (Colo.App.1992) (stating that, if in the exercise of ordinary diligence a party should have known a fact, it will be deemed to have knowledge).

The Colorado Court of Appeals explained constructive knowledge as follows:

Constructive knowledge may be inferred if the conduct occurs openly, such that a reasonable person would observe it. If knowledge of the prohibited conduct could have been obtained through the exercise of reasonable care and diligence, constructive knowledge may be inferred.

Applying a constructive knowledge standard does not place an undue burden on the licensee because constructive knowledge requires only reasonable care and diligence and does not require extraordinary vigilance. Constructive *333knowledge means knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person.

Full Moon Saloon, 111 P.3d at 570 (citations and internal quotation marks omitted).

Nevertheless, the Liquor Board argues that Rule 4.17 is similar to Rule 4.01(a), which we held in Hoyle to impose strict liability. We disagree.

Rule 4.01(a) provides: “No licensee shall sell or furnish alcoholic beverages to any person under twenty-one (21) years of age or to any person with the knowledge that such person is purchasing or acquiring such beverages for consumption by any person under twenty-one (21) years of age.” Hoyle, 115 Md.App. at 130, 692 A.2d 1. In Hoyle, the Liquor Board ruled that Martini’s Bar had violated Rule 4.01(a) when one of its employees served alcohol to a minor. Id. at 128, 692 A.2d 1. Martini’s Bar appealed, arguing that this Court “should read a ‘due caution’ provision into the [R]ule.” Id. at 131, 692 A.2d 1. We declined to do so, and instead held that the Rule “imposes strict liability for the sale on the licensees.” Id. at 133, 692 A.2d 1.

Our holding in Hoyle is clearly distinguishable from our holding in the case sub judice. Rule 4.01(a), unlike Rule 4.17, does not use the words “suffer,” “permit,” or “allow,” which, as explained above, necessarily include an element of knowledge. Instead, Rule 4.01(a) sets forth a simple directive — “No licensee shall sell or furnish ....”, which carries no implication of knowledge.

Finally, because the word “knowingly” appears in the second independent clause (“second clause”), and not in the first independent clause (“first clause”), of Rule 4.17(b), the Liquor Board claims that such sentence construction necessarily implies a strict liability standard in the first clause. Again, we disagree.

To reiterate, Rule 4.17(b) states:

*334No licensee shall permit or suffer any person to appear in any act or other performance with breasts or the lower torso uncovered; nor shall any licensee knowingly permit or suffer his premises to be used for the conduct, exhibition or performance of an obscene act or other performance.

The first clause clearly identifies the prohibited act — any person “appearing] ... with breasts or the lower torso uncovered.” On the other hand, the second clause prohibits the performance of an “obscene act or other performance.” In our view, the word “knowingly” appears in the second clause because an element of knowledge is required to constitutionally regulate obscenity, a class of unprotected speech that is not clearly defined in First Amendment jurisprudence. See generally Miller v. California, 413 U.S. 15, 20, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (summarizing “the somewhat tortured history of the Court’s obscenity decisions”).

Accordingly, we hold that the Liquor Board erred in finding that Kougl was guilty of violating Rules 4.17(a), 4.17(b), and 4.18, because there was no evidence that Kougl had actual or constructive knowledge of his employee’s prohibited activity.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO ENTER A JUDGMENT REVERSING THE DECISION OF THE LIQUOR BOARD RENDERED ON JULY 17, 2014. COSTS TO BE PAID BY APPELLEE.

WESLEY, Circuit Judge:

Defendants Zvi Goffer, Michael Kimel-man, and Craig Drimal were convicted in the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge) of conspiracy to commit securities fraud in violation of 18 U.S.C. § 371 and securities fraud in violation of 15 U.S.C. §§ 7Sjj(b) and 78ff, 17 C.F.R. §§ 240.10b-5 and 240.10b-5-2, and 18 U.S.C. § 2.1 Goffer and Kimelman were convicted after a 13-day jury trial; Drimal pled guilty. Goffer was convicted of two counts of conspiracy to commit securities fraud and twelve counts of securities fraud; Kimelman was convicted of conspiracy to commit securities fraud and two counts of securities fraud; and Drimal pled guilty to conspiracy to commit securities fraud and five counts of securities fraud. Drimal and Goffer appeal their sentences and Kimelman and Drimal challenge their convictions based on evidentia-ry rulings, jury instructions, and sufficiency of the evidence.2

Background

Goffer, Kimelman, and Drimal, along with non-party defendants, conducted a double-blind, high-volume insider trading network that led the participants to acquire over $10 million in profits. Goffer, who worked as a proprietary trader3 at the Schottenfeld Group, LLC (“Schotten-feld”), spearheaded the conspiracy.

In 2007, Drimal traded from the offices of the Galleon Group (“Galleon”), a firm led by Raj Rajaratnam. Kimelman, previously an attorney at a New York law firm, traded for Quad Capital (“Quad”), a proprietary trading firm. In late 2007, Kimel-man, Goffer, and Goffer’s brother Emanuel established a new trading firm, Incremental Capital (“Incremental”), though they retained their other positions. In early 2008, Kimelman left Quad to trade with Emanuel, and Goffer began trading at Galleon. Kimelman and Goffer spoke often and shared information that led them to trade in the same stocks. In 2007 and 2008, Kimelman and Goffer traded 151 stocks within five da$s of each other, in-*119eluding 88 stocks that they both traded on the same day.

I. The Conspiracy

In the summer of 2007, Arthur Cutillo and Brian Santarlas, attorneys at Ropes & Gray LLP, met with Jason Goldfarb, a workers’ compensation attorney who had attended law school with Cutillo. Goldfarb indicated to the Ropes & Gray attorneys that he had a Mend who traded stocks and would pay for information about corporate acquisitions. The Government showed at trial that Goffer was this Mend. What followed was a series of “tips” in which Cutillo and/or Santarlas would obtain ma-. terial non-public information and pass it to Goldfarb, who, in turn, would pass it to Goffer. Goffer distributed these “tips,” which frequently related to impending takeovers, to Mends and partners. Based on these tips, Goffer and his co-conspirators would acquire positions in the targeted companies and profit from the takeover’s effect on the share price.

Goffer’s network used prepaid cellular telephones to avoid detection; these phones — used by the attorneys and the traders — were destroyed after each successful tip. See, e.g., Tr. 429-31, 436-37; Gov’t Ex. 114, 127. Throughout the relevant time period, Goffer spoke with cocon-spirators, especially Kimelman, guardedly when on the phone. For instance, he described the P.F. Chang’s tip as “a good thing” but “nothing I’m going to talk about on the telephone.” Gov’t Ex. 145. Goffer often asked Kimelman to meet in person or “in the street” when conveying sensitive information. They also discussed countermeasures and ways to avoid detection, suspecting that high-volume trades in little-traded companies immediately prior to their acquisition could raise regulatory eyebrows. Goffer relied on Kimelman to provide him with insights into the meaning of legal documents associated with the acquisitions, including revised merger agreements, settlement agreements, signature pages, and limited guarantees, inter alia.

II. The 3Com Tip

The first tip presented at trial related to Bain Capital’s bid to acquire 3Com. When Cutillo and Santarlas learned about the progress of the deal — for example, by finding documents entitled “closing agenda” or “signature papers” on Ropes & Gray’s document management system or on a communal printer — they reported this progress to Goldfarb, who passed it on to Goffer. Goffer shared information relating to the takeover bid with some of his coconspirators. Goffer frequently convened a group of co-conspirator traders (typically including Emanuel, Kimelman, and David Plate, another Schottenfeld trader) at a bar where the group would discuss the progress of the takeover bid and any new information that Goffer had received regarding the plans.

On August 7, 2007, Goffer, Drimal, Emanuel, and Plate began acquiring 3Com stock based on the material nonpublic information that Goffer received from Gold-farb. Gov’t Ex. 10. That evening, Goffer had a 25-minute phone conversation with Kimelman.4 The next day, Kimelman purchased 94,200 shares of 3Com stock. That week, forbidden from purchasing more 3Com stock by Quad’s risk management team, Kimelman sent an otherwise wordless email to Goffer into which he had pasted an instant message conversation with Quad’s risk management expert.

*120Goffer also provided details about the acquisition and the sources of his information to Drimal; Drimal passed both on to David Slaine, a cooperating witness. Dri-mal explained that the information came from an attorney from “Ropeson” who risked “his whole ... career and maybe going to jail” by sharing these tips. Gov’t Ex. 206, 208.

On September 27, 2007, Goffer told Plate and other coconspirators that the acquisition of 3Com would happen the next day. Goffer had learned that the signature papers were prepared and he confirmed with Kimelman, who verified, based on his background as an attorney, that signature papers “were what they sounded like; they were something that took place at the end of a deal.” Tr. 831-32, 1067. Kimelman was either present or was consulted over the phone. Bain announced its acquisition of 3Com the next day; the co-conspirators all profited.5 Goffer told Plate that he needed to pay his source, and identified those who were contributing (including Drimal); the co-conspirators paid Santarlas, Cutillo, and Goldfarb $25,000 each.

III. Other Tips

In November 2007, Santarlas overheard other Ropes & Gray associates discussing a client’s upcoming acquisition of Axcan. Santarlas, who did not work on mergers and acquisitions, accessed at least four documents on the Ropes & Gray document management system relating to the acquisition; he and Cutillo shared the tip with Goldfarb. Goldfarb passed the attorneys’ information to Goffer, who disseminated it (at a minimum) to Drimal and Slaine. Dri-mal shared the information with Michael Cardillo, a Galleon trader, though he again attributed the tip to “Ropeson” attorneys. Tr. 1106. Drimal and Plate purchased Axcan stock and benefitted from the Ax-can acquisition announced on November 29, 2007; Drimal gained $1,984,867. Gof-fer did not trade Axcan because it was a small, rarely-traded stock and he did not want to attract regulatory attention. Tr. 657-58.

In February 2008, Santarlas learned about a possible takeover of P.F. Chang’s China Bistro, Inc. (“P.F.Chang’s”) from a colleague; he conveyed this information to Goldfarb, who shared it with Goffer. Tr. 131-34, Gov’t Ex. 2. A few days later Gof-fer called Kimelman to seek his advice, but ‘noted that it was “nothing I’m going to talk about on the telephone.” Gov’t Ex. 145. Kimelman agreed to come into Manhattan to “figure out our plan of attack.” Id. Goffer, Emanuel, and Kimelman decided to purchase P.F. Chang’s stock as part of an acquisition of a broad restaurant portfolio to disguise their use of the inside information. Tr. 849-50. Goffer instructed the group that “everything’s got to be printed out” to help them “go about ... justifying a trade.” Gov’t Ex. 149. No P.F. Chang’s acquisition was announced in 2008.

In March 2008, Cutillo and Santarlas observed that deal documents for Bain Capital’s acquisition of Clear Channel Communications, Inc. (“Clear Channel”) were laid out in a “closing room” at the law firm, apparently ready for execution, and reported that closing was imminent. Unbeknownst to these tippers, neither of whom worked on the deal, the Clear Channel acquisition was staged so that the lenders could be sued for specific performance. When the deal did not close as anticipated, Goffer, Kimelman, and Drimal all suffered losses on their Clear Channel investments.

*121In May, there was more Clear Channel activity at the Ropes & Gray offices. Cu-tillo passed the information to Goldfarb, who told Goffer. Tr. 494-95, Gov’t Ex. 198. Goffer summoned Kimelman for an “urgent meeting;” immediately afterwards, he called another trader and told him to purchase Clear Channel call options for “everybody.” Gov’t Ex. 199, 201. Over the next two business days, Clear Channel publicly announced that it was in settlement talks with the lenders and that an amended merger agreement had been reached. The market reacted favorably to this news and Goffer earned over $1 million in profits in his Galleon account trading on this tip.

Schottenfeld trader Gautham Shankar provided several tips to Goffer, including acquisitions of Kronos, Inc. and Hilton Hotels Corp. (“Hilton”). Tr. 650-51. Goffer, Kimelman, Drimal, and Emanuel benefit-ted from trading on this inside information. Profits from these illegal trades were included in calculating the loss amount for sentencing purposes, but the trades were not charged at trial.

IV. Recruitment of David Slaine

In the fall of 2007, Goffer and Kimelman recruited David Slaine to join Incremental Capital. The co-conspirators hoped that Slaine, who unbeknownst to them was working as a cooperating witness after his own arrest for insider trading, would provide them with the financial backing to get their insider trading-fueled business off the ground. Kimelman urged Goffer to tell Slaine that he would “get great information” by investing with Incremental. Gov’t Ex. 114A. Goffer mentioned that he had received tips about certain acquisitions before they happened, including 3Com, Ax-can, and Hilton. Gov’t Ex. 212. Goffer jokingly told Slaine that the information came from a construction worker, but when pushed he elaborated “you [are] probably better off not knowing where they were coming from ... [Y]ou don’t want to know where it’s coming from obviously.” Gov’t Ex. 222. Kimelman chimed in, asserting that the source was that “[g]uy fixing that pothole down there.” Id.

V. Trial and Sentencing

The Government’s evidence at trial included testimony from Slaine, Santarlas, Plate, Cardillo, and a Ropes & Gray partner. It also included recordings of Slaine’s conversations with Goffer, Kimelman, Dri-mal, and Emanuel; wiretap recordings of Goffer’s conversations with Kimelman, Drimal, Emanuel, and others; instant messages and e-mails sent between the co-conspirators; telephone records; and trading records.

Defendants were convicted on all counts. The district court sentenced Drimal (who pled guilty) to 66 months’ imprisonment, Goffer to 120 months’ imprisonment, and Kimelman to 30 months’ imprisonment. The district court also entered forfeiture orders of $11 million, $10,022,931, and $289,079 against Drimal, Goffer, and Ki-melman, respectively.

Discussion

Defendants challenge (1) the admission of wiretap evidence in support of their securities-fraud convictions; (2) the sufficiency of the evidence to support Kimel-man’s conviction on the substantive counts of insider trading; (3) the district court’s jury instructions on conscious avoidance;6 *122(4) the district court’s exclusion of evidence that Kimelman rejected a plea bargain; and (5) the sentences they were issued. Other arguments raised by Defendants are addressed in a related summary order. Goffer, 2013 WL 3285137.

I. Lawfully-Obtained Wiretap Evidence Is Admissible in a Securities Fraud Prosecution

Defendants contend that the district court erred in permitting the Government to introduce evidence obtained through wiretaps because securities fraud is not a predicate offense under Title III of the Omnibus Crime Control and Safe Streets Act of 1968,18 U.S.C. § 2510 et seq. (“Title III”), and because the evidence was not intercepted incidentally to an otherwise lawful wiretap. See 18 U.S.C. §§ 2516(1), 2517(5). Concurring with the analysis of a recent and related case in the Southern District of New York, we hold that the evidence was lawfully obtained and therefore properly admitted. See United States v. Rajaratnam, No. 09-cr-1184(RJH), 2010 WL 4867402, at *1-6 (S.D.N.Y. Nov. 24, 2010), aff'd, No. 11-4416-cr, 719 F.3d 139, 2013 WL 3155848 (2d Cir. June 24, 2013).

Defendants assert two flaws with the wiretap evidence that the Government adduced at trial.7 First, they allege that the wiretap evidence should be excluded because securities fraud is not a predicate offense under Title III. Second, they allege that the intercepts are not admissible in a securities fraud prosecution unless inter ception of information relating to securities fraud is inadvertent. Neither argument is persuasive.

Title III contains an exclusionary rule prohibiting the use at trial of “unlawfully intercepted” communications. 18 U.S.C. §§ 2518(10)(a)(i), 2515. To benefit from the exclusionary rule, Defendants have to establish that the wiretaps were illegal.

Section 2517(5) of Title III governs the use of evidence obtained on a wiretap “relating to offenses other than those specified in the order of authorization or approval.” 18 U.S.C. § 2517(5). “[T]he purpose of § 2517(5) ... is to prevent ‘subterfuge searches,’ in which the government uses a warrant authorizing seizure of one type of evidence as a license to collect evidence of an offense not covered by the authorization.” United States v. Smith, 726 F.2d 852, 865 (1st Cir.1984). “ ‘[Ojther’ offenses under Section 2517(5) may include offenses, federal as well as state, not listed in Section 2516 so long as there is no indication of bad faith or subterfuge by the federal officials....” In re Grand Jury Subpoena Served on Doe, 889 F.2d 384, 387 (2d Cir.1989).

When an authorized wiretap intercepts “communications relating to offenses other than those specified in the order of authorization,” 18 U.S.C. § 2517(5), “disclosure or use” of those communications is permissible provided “a subsequent application ... made to a judge of competent jurisdiction [demonstrates] the good faith *123of the original application.” United States v. Marion, 535 F.2d 697, 700 (2d Cir.1976). “Such subsequent application would include a showing that the original order was lawfully obtained, that it was sought in good faith and not as a subterfuge search, and that the communication was in fact incidentally intercepted during the course of a lawfully executed order.” Id. (quoting S.Rep. No. 90-1097, at 2189 (1968)). We perceive no reason why the principle un-dergirding this rule that disclosure or use of communications intercepted incidentally to an otherwise lawful, good faith wiretap application does not violate Title III— should not apply when the Government forthrightly discloses the probability of intercepting “communications relating to other offenses” ex ante, at the time it makes its initial wiretap application. “Congress did not intend that a suspect be insulated from evidence of one of his illegal activities gathered diming the course of a bona fide investigation of another of his illegal activities merely because law enforcement agents are aware of his diversified criminal portfolio.” United States v. McKinnon, 721 F.2d 19, 23 (1st Cir.1983).

In this case, Government investigators indicated in the wiretap applications that, in addition to wire fraud, they expected to uncover evidence of securities fraud (which, they expressly noted, is “not a predicate offense under 18 U.S.C. § 2516”). This representation ensured that the wiretaps were not obtained as a “subterfuge” or to surreptitiously investigate crimes other than those about which they informed the court.8

“[W]hen the government investigates insider trading for the bona fide purpose of prosecuting wire fraud, it can thereby collect evidence of securities fraud, despite the fact that securities fraud is not itself a Title III predicate offense.” Rajaratnam, 2010 WL 4867402, at *6. The ten judges reviewing wiretap applications in this case found that the Government proved that it had a good-faith investigation of wire fraud and/or money laundering. The fact that the Government also informed the approving courts that Defendants were involved in a conspiracy to commit securities fraud did not immunize Defendants from otherwise lawful interception of communications related to their wire fraud. The wiretap evidence was lawfully obtained and properly admitted.

II. The Jury Had Sufficient Evidence to Convict Kimelman of Securities Fraud

Kimelman challenges the sufficiency of the evidence supporting his substantive securities fraud conviction for his purchase of 15,000 shares of 3Com stock on August 10, 2007 and 5,000 shares of 3Com stock on September 25, 2007. Specifically, he contends that the Government did not prove that Goffer had tipped him about 3Com or that he knew or consciously avoided knowing that Goffer had material nonpublic information about 3Com that was disclosed in violation of a fiduciary duty.9 More specifically, he argues that the Government’s main evidence, an unrecorded phone call he had with Goffer on August 7 and an email he wrote to Goffer on August 15, does not indicate that he received a tip *124from Goffer or knew that any such tip was based on illegally-disclosed information. He also insists that a discussion he had with the other co-conspirators on September 27, on the eve of the deal’s announcement, cannot count as proof of his awareness of the earlier fraud.

“[A] liable tippee must know that the tipped information is material and nonpublic ... ‘and the tippee knows or should know that there has been a breach’ ” of fiduciary duty. SEC v. Obus, 693 F.3d 276, 287 (2d Cir.2012) (emphasis retained) (quoting Dirks v. SEC, 463 U.S. 646, 660, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983)). The Government did not need to prove that Kimelman knew the identity or nature of the source if he knew that the information was illegally obtained. Id. In denying Kimelman’s Rule 29 motion, the district court described this as “a verdict that could go either way” and “certainly a close case,” but decided that the “jury’s verdict [was not] unreasonable such that it should be overturned.” Reviewing de novo and “crediting ‘every inference that the jury may have drawn’ in the government’s favor,” we agree. United States v. Hassan, 578 F.3d 108, 122 (2d Cir.2008) (quoting United States v. Finley, 245 F.3d 199, 202 (2d Cir.2001)).

A court examines each piece of evidence and considers its probative value before determining whether it is unreasonable to find “the evidence in its totality, not in isolation,” sufficient to support guilt beyond a reasonable doubt. United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000). This requirement is particularly critical where, as here, some evidence derives its probative force from other evidence. “ ‘[T]he jury’s verdict may be based entirely on circumstantial evidence.’ ” United States v. Santos, 541 F.3d 63, 70 (2d Cir.2008) (quoting United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir.1995)). Moreover, we need not find that every reasonable jury would have convicted Kimelman; we affirm “if we find that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Stewart, 590 F.3d 93, 109 (2d Cir.2009) (internal quotation marks omitted, emphasis in original).

Kimelman argues that we should exclude from our analysis evidence related to activity after the trades at issue. We reject this argument. Kimelman’s knowledge of the illicit nature of Goffer’s source after the trades is still probative (though not in itself sufficient to establish his knowledge before the trades).

Evidence indicating a defendant’s knowing participation in a later stock manipulation scheme is relevant to the earlier scheme where, for example, it shows that a defendant was “conversant in the language of stock manipulation.” United States v. Rutkoske, 506 F.3d 170, 177 (2d Cir.2007). This analysis applies equally in the context of insider trading. “Relevancy cannot be reduced to [a] mere chronology; whether the similar act evidence occurred prior or subsequent to the crime in question is not necessarily determinative to its admissibility[ and therefore its probative value].” United States v. Ramirez, 894 F.2d 565, 569 (2d Cir.1990). Subsequent acts are frequently probative as to intent. See, e.g., United States v. Germosen, 139 F.3d 120, 127-28 (2d Cir.1998). Here, Kimelman’s participation in Goffer’s ongoing scheme led to later transactions that “so closely paralleled the charged conduct that it was probative regardless of the temporal difference.” United States v. Curley, 639 F.3d 50, 61 (2d Cir.2011).

If we focus on the evidence in the record from prior to the public announcement of Bain’s bid for 3Com on September *12528, 2007, and credit every inference that the jury could have drawn in the Government’s favor, we find ample support for the jury to conclude that Kimelman was tipped by Goffer and knew or consciously avoided knowing that Goffer’s tip about 3Com was based on nonpublic information illegally disclosed in breach of a fiduciary duty.

The Kimelman-Goffer telephone call of August 7, though unrecorded, marked a change in Kimelman’s 3Com stock trading behavior. Prior to August 7, Kimelman day-traded 3Com stock in smaller quantities of 1,000, 2,000 and 5,000 shares, including on August 5, just two days before the call. Kimelman did not maintain those positions but sold them before the end of each trading day. On August 8, the day after the evening phone call, however, Ki-melman bought 94,200 shares of 3Com, easily his largest single-day purchase, which he did not sell. In the subsequent days and weeks, he continued to add to that position — buying another 24,000 shares on August 9 and 15,000 more shares on August 10. He maintained the accumulated position until after the 3Com merger bid was announced; when the share price shot up, he sold the position and profited.

Kimelman was so aggressive in acquiring 3Com that his employer at Quad restrained him from making further purchases of 3Com stock. Despite the warning from Quad, Kimelman managed to buy 5,000 more shares of 3Com on September 25. From August 7 to 8, Ki-melman’s behavior changed from being very cautious about 3Com to suddenly becoming very confident. Such a sudden change in a defendant’s stock trading pattern, which cannot be readily explained by other reasons, could be probative of trading on insider information. See United States v. Smith, 155 F.3d 1051, 1069 (9th Cir.l998)(reeognizing “situations in which unique trading patterns or unusually large trading quantities suggest that an investor had used inside information”).

His e-mail to Goffer on August 15, with news of Quad’s restraint, indicates at the very least that the two were actively discussing the trading in 3Com shares. Ki-melman’s new 3Com trading behavior matched that of Goffer and of the other co-conspirators who were tipped by Goffer on August 7. And like the others, Kimelman cashed out of his 3Com positions shortly after Bain’s bid was announced. Parallel trading patterns among co-conspirators can be another indicator of insider trading. See, e.g., SEC v. Warde, 151 F.3d 42, 47-48 (2d Cir.1998). In this case, the manner in which Kimelman sold the stock is at least suggestive of the motive he had for buying it, which was not for long term investment value, but in anticipation of a particular event.

Also revealing is the discussion Kimel-man had with Goffer on the eve of the 3Com deal’s announcement on September 27. Goffer asked about the significance of signature pages in a pending transaction, and Kimelman explained that the preparation of the signature pages meant that a deal signing was imminent. As a former associate at a leading corporate law firm, Kimelman had to know that Goffer, in asking such a question, was privy to the inner workings of a pending transaction to be aware of the status of signature pages. Since Goffer had no legal basis to have access to such information, Kimelman must therefore have known or been aware of a high probability that this insider information was made available to Goffer in breach of a fiduciary duty. Indeed, it was from this exchange that Plate, who testified about the conversation, became convinced that Goffer’s tip was illegally obtained.

*126Kimelman also argues that much of the Government’s evidence applied equally convincingly to Plate, who claimed at trial that he did not know of Goffer’s inside source until the “signature pages” conversation. However, a rational juror could readily infer from the trust that Goffer showed in Kimelman by asking him about the signature pages and the matter-of-fact manner in which Kimelman answered — without astonishment as to Goffer’s knowledge or expression of concern about the sensitivity of such information— that Kimelman shared a relationship of trust with Goffer that Plate did not. This, in turn, would support an inference that Kimelman had some degree of prior awareness of Goffer’s illegal source of information, even if the jury also concluded that Plate had no such awareness. Moreover, the jury was free not to credit Plate’s self-serving testimony that he did not know about the source of the inside information. “[W]e defer to a jury’s assessments with respect to credibility [as long as they are] ‘reasonably based on evidence presented at trial.’ ” United States v. Torres, 604 F.3d 58, 67 (2d Cir.2010) (quoting United States v. Ceballos, 340 F.3d 115, 125 (2d Cir.2003)).

After September 2007, evidence of his knowledge of the fraud becomes overwhelming and Kimelman does not deny the sufficiency of the showing in support of his conspiracy conviction. Goffer later described Kimelman and Emanuel as members of his “inner circle” or “tight circle.” A rational juror could find that this circle came together well before those statements were made and prior to the beginning of the 3Com trades. The government produced evidence from July 2007 showing that the trio bought and profited from shares of Hilton Hotels shortly after Gof-fer received an insider tip. Goffer and Emanuel, along with co-conspirators outside the “inner circle,” bought shares of 3Com on August 7. Kimelman’s habit of feigning indifference to the source of Gof-fer’s information in the presence of co-conspirators not within the “inner circle” also continued in the subsequent months.

Viewed in its totality, the Government’s proof provides enough evidence for a reasonable jury to conclude that Kimelman was guilty beyond a reasonable doubt of insider trading in 3Com. The jury’s verdict is supported by sufficient evidence and is not unreasonable; we affirm Kimelman’s conviction.

III. The Conscious Avoidance Jury Instructions Were Proper

Over Kimelman’s objections,10 the district court instructed the jury on the theory of “conscious avoidance,” which permits a jury to convict a defendant for “deliberately closing] his eyes to what would otherwise have been obvious to him.” United States v. Gansman, 657 F.3d 85, 94 (2d Cir.2011). Kimelman appeals the issuance and the substance of jury instructions on conscious avoidance as to the illicit origins of Goffer’s tips. Finding no flaw in either, we affirm.

A. There Was a Factual Predicate for the Instruction

“A conscious avoidance instruction ‘may only be given if (1) the *127defendant asserts the lack of some specific aspect of knowledge required for conviction [] and (2) the appropriate factual predicate for the charge exists, i.e. the evidence is such that a rational juror may-reach the conclusion beyond a reasonable doubt that the defendant was aware of a high probability of the fact in dispute and consciously avoided confirming that fact.’ ” United States v. Svoboda, 347 F.3d 471, 480 (2d Cir.2003) (quoting United States v. Ferrarini, 219 F.3d 145, 154 (2d Cir.2000)) (internal alterations and some quotation marks omitted). In this case, the first prong is met; Kimelman claimed ignorance at trial as to the source of the 3Com tip. However, Kimelman contends that there was insufficient evidence (1) for a juror to conclude that he was aware of a high probability that the 3Com tip came from an insider and chose to avoid confirming that fact, and (2) for a juror to conclude that he ever knew about the illicit nature of Goffer’s information. We disagree.

For substantially the same reasons discussed above, there was ample evidence supporting the inference that if Kimelman did not know about those facts, that he had to have consciously avoided becoming aware of them. First, given the 25-minute telephone conversation he had with Goffer on the evening of August 7, the abrupt and pronounced change in his trading pattern of 3Com stock immediately thereafter, his subsequent outreach to Goffer about 3Com trading on August 15, and the fact that Goffer had shared the tip with other co-conspirators whom Kimelman knew, a rational juror was entitled to conclude that Kimelman was aware of a high probability that Goffer had insider information about 3Com. Second, the fact that Goffer asked about signature pages on the eve of the 3Com deal announcement and the routine manner in which Kimelman answered the question, again provides the basis for a juror to conclude that he was aware of a high probability that the source of Goffer’s information was illegal.

With respect to Kimelman’s conscious avoidance of knowledge of Goffer’s sources throughout the conspiracy, Kimelman’s challenge lacks any merit. While he and Kimelman were recruiting Slaine for Incremental, Goffer told Slaine that he was “better off not knowing where [his tips] were coming from.” Gov’t Ex. 222. That way, Goffer continued, if “someone from the government ever ask[ed] you where did [that tip] come from. You [would] be like, I don’t freakin’ know where it came from.” Building on Goffer’s (facetious) assertion that his source was a construction worker, Kimelman added that it was a “[g]uy fixing that pothole down there.” His additions to this conversation about the need for plausible deniability underscore Kimelman’s conscious avoidance of knowledge as to Goffer’s source. The jury was entitled to hear the conscious avoidance instruction.

Kimelman’s argument that the Government’s evidence sought to prove actual knowledge rather than conscious avoidance is both unsupported and irrelevant. “Red flags about the legitimacy of a transaction can be used to show both actual knowledge and conscious avoidance.” United States v. Ferguson, 676 F.3d 260, 278 (2d Cir.2011) (citing United States v. Nektalov, 461 F.3d 309, 316-17 (2d Cir.2006)).

B. The Content of the Instructions Was Proper

Kimelman alleges that the district court erred in declining to amend its jury instructions to accord with the Supreme Court’s ruling in Global-Tech Appliances, Inc. v. SEB S.A., — U.S.—, 131 S.Ct. 2060, 179 L.Ed.2d 1167 (2011). Specifical*128ly, Kimelman contends that the Global-Tech decision required that jury charges indicate that “the mental state of recklessness is insufficient for a finding of conscious avoidance.” Because Global-Tech did not alter the conscious avoidance standard, we hold that the district court’s refusal to amend the jury instructions to accord with Global-Tech was not error.

In Global-Tech, the Supreme Court synthesized conscious avoidance holdings from eleven circuit courts in order to import the doctrine from criminal law to patent law. 131 S.Ct. at 2070 n. 9 and 2068-72. The Court did not alter or clarify the doctrine, but instead identified the common ground among the Courts of Appeals:

[A]ll [Courts of Appeals] appear to agree on two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact. We think these requirements give willful blindness an appropriately limited scope that surpasses recklessness and negligence.

Id. at 2070 (emphasis added).

Kimelman urges us to believe that this language, built upon, inter alia, Second Circuit precedent in Svoboda, 347 F.3d at 477-78, was designed to alter the substan-five law. Global-Tech simply describes existing case law. In so holding, we follow other decisions in this Circuit since Global-Tech that have applied the traditional conscious avoidance doctrine. See, e.g., United States v. Coplan, 703 F.3d 46, 90 (2d Cir.2012); Ferguson, 676 F.3d at 278-79.

The district court’s instructions in this case properly imposed the two requirements discussed by the Global-Tech decision.11 Kimelman requested that the district court insert the word “reckless” into a list of mental states that were insufficient. However, Global-Tech makes clear that instructions (such as those in this case) that require a defendant to take “deliberate actions to avoid confirming a high probability of wrongdoing” are inherently inconsistent with “a reckless defendant ... who merely knows of a substantial and unjustified risk of such wrongdoing.” 131 S.Ct. at 2070-71. The district court’s instructions were consistent with Global-Tech; we therefore affirm Kimelman’s conviction.

IV. Evidence of Kimelman’s Rejection of a Plea Bargain Was Properly Excluded

Kimelman contends that the district court erred in excluding his rejee*129tion of a plea bargain. “The trial court’s ... assessment that the probative value of relevant evidence is [] substantially outweighed by the danger of unfair prejudice [is] reviewed only for an abuse of discretion.” United States v. Khalil, 214 F.3d 111, 122 (2d Cir.2000) (internal quotation marks omitted). Kimelman argues by analogy to United States v. Biaggi, 909 F.2d 662, 690-93 (2d Cir.1990), in which we held that the defendant’s decision to forgo immunity out of an insistence that he was innocent was probative of his “consciousness of innocence.” Id. at 690.

The defendant in Biaggi was offered complete immunity. Id. Relying on the difference between this and “an offer to plead guilty to reduced charges,” we held that a defendant’s decision to reject an offer of immunity was probative. Id. at 690-91. We did “not decide whether a defendant is entitled to have admitted a rejected plea bargain.” Id. at 691.

This case differs from Biaggi because the excluded evidence here lacked any probative value. Kimelman has detailed the “devastating collateral consequences” flowing from the entry of a criminal conviction against him.12 Although the parties disagree as to the terms of the rejected plea offer, both parties concede that it would have entailed a conviction. This was not a case where the defendant was permitted to walk away scot free and declined to do so out of a strong belief of his innocence. Rejecting this offer was, in this case, an indication “that the defendant preferred] to take his chances on an acquittal by the jury, rather than accept the certainty of punishment after a guilty plea.” Id.

The district court briefly discussed the prejudicial effects of admitting this evidence, including the likelihood of jury confusion. Admission would require the “collateral consequences” of a conviction to be discussed at length, requiring an already complex trial to gain additional and unnecessary dimensions. We find that the trial court was within its “latitude” in excluding Kimelman’s rejection of a plea agreement under Federal Rule of Evidence 403. See Holmes v. South Carolina, 547 U.S. 319, 324-25, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006).

V. Defendants’ Sentences Were Reasonable

Goffer and Drimal challenge the substantive and procedural reasonableness of their sentences. The role of appellate courts in sentencing is important but limited. “We review the work of district courts under a ‘deferential abuse-of-discretion standard.’ ” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)).

A. Defendants’ Sentences Were Procedurally Reasonable

Defendants contend that the district court committed procedural error in sentencing them. In reviewing sentencing for procedural errors, we first look for “error in the district court’s calculation of the [United States Sentencing] Guidelines range.” Id. at 194. Here, Drimal argues *130that the district court erred in its loss calculations and Goffer contends that the district court failed to consider disparities between co-defendants.

1. The Loss Calculation Was Proper

In calculating the “loss” attributable to DrimaFs trading, the district court took account of the Probation Office’s Presen-tence Investigation Report as well as submissions from the parties. The district court accepted the Government’s assertion that Drimal realized gains of between $7 and $20 million, resulting in a Guidelines enhancement of 20 points. See U.S.S.G. §§ 2B1.4(b)(l), 2Bl.l(b)(l)(K). Drimal asserted that his gains were between $2.5 and $7 million, for an enhancement of 18 points. U.S.S.G. § 2Bl.l(b)(l)(J). Drimal alleges two errors in the calculation of the loss amount.

First, Drimal contends that the district court committed procedural error by failing “to deduct losses resulting from trades that emanated from the same” insider sources as provided the tips that gave him $11 million in profits. We interpret this argument as relating to the Clear Channel trades Drimal made based on the attorneys’ misunderstanding of inside information. We find no precedent indicating that additional illegal trades made on material nonpublic information that result in losses should mitigate the sentences of insider traders. Cf. U.S.S.G. § 2B1.1 n. 3. If two defendants are identical save that Defendant A engaged in one more insider trade than Defendant B, there is no case in which Defendant A deserves a lesser punishment than Defendant B. That Defendant A’s additional criminal activity backfired does not affect that calculus. The district court did not err in excluding these losses from its calculation.

Drimal also contends the district court erred in considering the Hilton trades for the calculation of the loss amount. This contention relies on Drimal’s assertion that he did not know that the Hilton trades were based on inside information until two months later (when he was recorded making statements that clearly demonstrate his awareness that his profits from the Hilton trade were illegally-obtained profits of insider trading). Reviewing the district court’s fact-finding at sentencing, we find no error in the court’s extensive and well-reasoned analysis.

2. The District Court Considered Disparities Between Defendants

Goffer asserts that the district court did not account for sentencing disparities between similarly-situated defendants. This argument contains both a procedural and substantive challenge. To the extent that Goffer asserts that the district court did not consider the sentences of similarly-situated defendants, his claim lacks merit.13 The district court weighed “the need to avoid unwarranted sentencing disparity between Mr. Goffer and similarly situated defendants.” The district court distinguished between Goffer and his co-defendants and also described Goffer’s role as a “leader[ ] of a fraudulent enterprise” who “recruited people” and poisoned other traders. Sentencing Tr. 228. The district court demonstrated that it weighed the need for similar sentences among similarly-situated defendants; however, the court rejected Goffer’s contentions as to who was situated similarly.

B. Defendants’ Sentences Were Substantively Reasonable

Goffer and Drimal challenge their sentences as substantively unreasonable, con*131tending that their (120-month and 66-month, respectively) sentences are disproportionate to sentences meted out to other white collar criminals.14 Believing that the district court’s well-reasoned analysis was appropriate, we affirm.

In reviewing a sentence for substantive reasonableness, we do “not substitute our own judgment for the district court’s on the question of what is sufficient to meet the [18 U.S.C.] § 3553(a) considerations in any particular case.” Cavern, 550 F.3d at 189 (citing United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006)). “We will instead set aside a district court’s substantive determination only in exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible decisions.’” Id. (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir.2007)).

“[A] district court may vary from the Guidelines range based solely on a policy disagreement with the Guidelines, even where that disagreement applies to a wide class of offenders or offenses.” Id. at 191 (citing Kimbrough v. United States, 552 U.S. 85, 107-08, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)). Defendants in this case assert that several district court judges have chosen to exercise this ability to issue below-Guidelines sentences to white collar criminals. Goffer and Drimal raise broad questions as to how harsh federal courts are, and how harsh they should be, in sentencing white collar defendants. We need not answer either question.

Assuming arguendo that some judges have chosen as a policy matter not to sentence white collar criminals to the harshest permissible punishments, this does not entitle other white collar criminals to lighter punishments than are reasonable under the Guidelines, 18 U.S.C. § 3553(a), and the totality of the circumstances of their individual case. See, e.g., United States v. Rigas, 583 F.3d 108, 121-24 (2d Cir.2009); United States v. Bonilla, 618 F.3d 102, 110 (2d Cir.2010).

1. Goffer’s Sentence Was Substantively Reasonable

Goffer faced a maximum of 20 years’ imprisonment for each of 12 counts of securities fraud. Goffer had an offense level of 32 and a criminal history category of I, yielding a Guidelines range of 121 to 151 months’ imprisonment. The Probation Office recommended that he be sentenced to 121 months’ imprisonment.

In reaching its determination, the district court considered “Goffer’s entire life from the circumstances of his birth, his upbringing, educational background and opportunities, work history, family relationships ... [and] the facts and circumstances of these crimes.” Sentencing Tr. 12. The court also considered “[t]he need to avoid unwarranted sentencing disparity between Mr. Goffer and similarly situated defendants.” Id. at 13.

The totality of the circumstances in this case included reasons to believe that Gof-fer had played a positive role in the lives of his family and friends, but also that Goffer orchestrated and ran a large-scale eash-for-tips scheme to fuel an insider trading conspiracy. Goffer took steps to disguise his wrongdoings by distributing disposable cell phones, using fake research to cover his illegal trades, and refusing to speak about sensitive topics on the telephone.

*132Goffer’s corrosive influence on the integrity of the financial markets and on the expectation of trust and confidence between attorney and client required a significant punishment. We do not find that his below-Guidelines sentence of 120 months’ imprisonment was unreasonable or disproportionate to the severity of his crimes.

2. Drimal’s Sentence Was Substantively Reasonable

Drimal contends that his sentence of 66 months’ imprisonment was substantively unreasonable in light of his community service and his commitment to his family. Drimal faced a maximum of 20 years’ imprisonment on five counts of securities fraud. His offense level of 25 and Criminal History Category of I led to a Guidelines range of 57 to 71 months’ imprisonment. The Probation Office recommended a 57-month sentence.

Drimal, who traded more heavily based on insider information than any other defendant in the conspiracy, asserts that his community service and commitment to his family should mitigate his wrongdoing. The district court took note of his positive activities in sentencing Drimal. The district court also noted that Drimal, who “earned” approximately $11,497,888 from trading on insider information, did not have the same compelling social disadvantages that frequently lead to and help explain criminal behavior.15

In light of the magnitude of his insider trading, which had major deleterious effects on the market, Drimal was no small-time criminal. The district court noted Dri-mal’s lack of respect for the law and his deliberate decision, weighing the risks, that insider trading “was a game worth playing.” Sentencing Tr. 48. The district court’s assertion that insider trading requires high sentences to alter that calculus is a Congressionally-approved example of giving meaning to the 18 U.S.C. § 3553(a) factors. The district court’s well-reasoned sentencing took account of the totality of circumstances, including Drimal’s motivations, his positive role in his family and the community, his knowledge that what he was doing was wrong, and the severity of his crimes. We affirm.

Conclusion

For the foregoing reasons, the judgments of conviction and the sentencing orders of the district court are AFFIRMED. Defendants’ additional arguments are addressed in the corresponding summary order. See Goffer, 2013 WL 3285137.

POSNER, Circuit Judge.

The government indicted fifteen men for offenses arising from their participation in an illegal gambling enterprise. Twelve of the defendants pleaded guilty, another absconded, and the remaining two, who are the appellants before us, went to trial and were convicted. Guy Giovannetti was convicted of racketeering (18 U.S.C. §§ 1962(c), (d)), conducting an illegal gambling business (18 U.S.C. § 1955) or aiding and abetting the conducting of such a business (18 U.S.C. § 2), and making false statements to federal agents (18 U.S.C. § 1001). He was sentenced to a total of 45 months in prison. Nicholas Janis was convicted of conducting an illegal gambling business or aiding and abetting its conducting, and was sentenced to 60 days.

The head of the gambling enterprise was Thomas Orlando, one of the defendants who pleaded guilty. Active primarily in Bridgeview and other southwestern suburbs of Chicago between 1978 and 1987, the enterprise operated a succession of “wirerooms,” where bets on various sporting events were accepted over the telephone, and it also sponsored “smokers,” or casino gambling nights, held at restaurants and bars, where guests played blackjack, craps, and poker. Giovannetti, and particularly Janis, had minor roles in the enterprise. Giovannetti was a bouncer, enforcer, and strong-arm collector of gambling debts owed the enterprise. Janis owned a house that the enterprise for a time used as its wireroom.

The evidence against Giovannetti was strong and the trial rulings of which he complains plainly correct, so we shall move directly to Janis’s appeal, which raises some difficult questions. Janis was a gambler and knew members of the Orlando organization, including Orlando himself and Richard Merino, a bookmaker for the organization. Together with a real estate agent who has not been charged with any wrongdoing, Janis owned, as an investment, a lot in Bridgeview with two houses on it, one behind the other. In the fall of 1982, Merino, who unbeknownst to Janis was a government informant, went to Janis and said he wanted to rent the smaller of the houses, the one in the rear, for his friend Pluta, who was recently divorced. This was done. Pluta did not move in until the spring of the next year (1983), but from November 1982 until July 1983 the house was in continuous use as a wireroom, operated first (it appears) by Merino and then, after Pluta moved in, by Pluta. The house was not used in the gambling enterprise after that, but early the following year the government tape-recorded a telephone conversation between Janis and Orlando in which Janis offered Orlando a key to the house and asked him whether everything was all right. Orlando responded: “Yeah, yeah, they just wanted to get out of there. They spotted some guys out there I guess.” Janis replied: “I know.” Although Merino and then Pluta were the nominal tenants, often the rent was paid not by either of them but instead by Michael Gioringo, whom Janis knew to be an aide to Thomas Orlando.

The only other evidence of Janis’s participation in the gambling enterprise was the testimony of a former friend and fellow gambler, Edward Arnold. Arnold testified that Janis had told him late in 1982 or early in 1983 that he had rented a house in Bridgeview to an acquaintance of Tommy Orlando or Richard Merino. Arnold further testified that shortly after this conversation the phone number that the Orlando enterprise had given him to use in calling in bets was changed to a number that he recognized as a “southwest side” number, an area that, as he knew, included Bridge-view. On the basis of the conversation and the phone number Arnold testified that “in my opinion it was possible that bets were being taken out of that house ... that Nick was renting.”

*1226Janis argues that Arnold’s testimony was impermissible opinion evidence, and irrelevant to boot. It was neither impermissible nor even opinion evidence. Rule 701 of the Federal Rules of Evidence permits a lay witness to offer an opinion or inference that is rationally based on the witness’s perceptions and that is helpful to the development of the evidence at trial. The rule is a sensible elaboration of Rule 602, which requires that a lay witness’s testimony be based on personal knowledge. All knowledge is inferential, and the combined effect of Rules 602 and 701 is to recognize this epistemological verity but at the same time to prevent the piling of inference upon inference to the point where testimony ceases to be reliable. Western Industries, Inc. v. Newcor Canada Ltd., 739 F.2d 1198, 1202-03 (7th Cir.1984); see also Kaczmarek v. Allied Chemical Corp., 836 F.2d 1055, 1060 (7th Cir.1987); 3 Weinstein & Berger, Weinstein’s Evidence ¶ 701[01] (1987). That point was not even approached here. Arnold was being asked whether the facts that he knew, which were facts equally known to Janis, who was also a customer of the Orlando enterprise (in fact Janis had introduced Arnold to it)—or rather were facts better known to Janis than to Arnold because Janis owned the house—had tipped off Arnold to the fact that the house was being used as a wireroom. What Arnold called his “opinion” was actually a report of the contents of his mind, of which people are normally assumed—whether correctly or not, it does not matter—to have direct rather than inferential knowledge. The admission of such testimony is not problematic.

The character of Arnold’s testimony as personal knowledge, not opinion, would have been transparent if the prosecutor had first asked him whether he had suspected that the house in Bridgeview was being used for a wireroom, and after he said yes had followed up with questions about the basis of that suspicion. That sequence would have made clear that Arnold was not being asked to draw an inference for the jury’s benefit—to formulate an opinion in litigation—but rather to explain the basis on which he had drawn an inference in the past. That basis lay in facts known equally or better to Janis, and it could be assumed therefore that Janis probably had drawn the same inference. The jury could not peer into Janis’s mind. It had to infer his knowledge from circumstances, one of which was that Arnold had concluded from facts known to Janis that Janis’s house was being used as a wire-room. Of course Arnold may have been sharper or more alert or more savvy than Janis, but this is just to say that the evidence was not conclusive with regard to Janis’s knowledge; it was relevant, however, and therefore admissible. United States v. Guzzino, 810 F.2d 687, 699 (7th Cir.1987).

Another way to grasp the true character of Arnold’s so-called “opinion” evidence is to note that the question on which he might have been said to offer an opinion was not in dispute: namely whether Janis’s house had been used as a wireroom. The purpose of calling Arnold was not to elicit testimony on a matter not in dispute but to explore the process by which he had reasoned to this conclusion and to ask the jury to infer that Janis had reasoned similarly to the same conclusion and therefore knew that his house was being used in the gambling enterprise.

Reference to Janis’s knowledge brings us to the central issue in the case, the propriety of the judge’s having given the “ostrich” instruction, on which see the thorough discussion in United States v. Jewell, 532 F.2d 697 (9th Cir.1976) (en banc). The instruction told the jury, “You may infer knowledge from a combination of suspicion and indifference to the truth. If you find that a person had a strong suspicion that things were not what they seemed or that someone had withheld some important facts, yet shut his eyes for fear that he would learn, you may conclude that he acted knowingly.” There is no quarrel with the wording of the instruction, which is verbatim the instruction that we recommended to the district judges of this circuit in United States v. Ramsey, 785 F.2d 184, 190 (7th Cir.1986); the question is whether it should have been adven.

*1227The ultimate question that the jury had to decide was whether Janis either had participated in conducting the Orlando gambling enterprise or, more plausibly, had aided and abetted the enterprise, by renting the house to Merino knowing it would be used as a wireroom. Now it is not the law that every time a seller sells something that he knows will be used for an illegal purpose he is guilty of aiding and abetting, let alone of actual participation in the illegal conduct. Aiding and abetting requires more, United States v. Pino-Perez, 870 F.2d 1230, 1235 (7th Cir.1989) (en banc); in Learned Hand’s words, requires that the alleged aider and abettor “in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.” United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938). A stationer who sells an address book to a woman whom he knows to be a prostitute is not an aider and abettor. Perkins & Boyce, Criminal Law 747 (3d ed.1982). He can hardly be said to be seeking by his action to make her venture succeed, since the transaction has very little to do with that success and his livelihood will not be affected appreciably by whether her venture succeeds or fails. And, what may well be the same point seen from another angle, punishing him would not reduce the amount of prostitution — the prostitute, at an infinitesimal cost in added inconvenience, would simply shop for address books among stationers who did not know her trade.

But Janis concedes that the rental of a house for gambling purposes is the type of assistance that brings the supplier within the field of the aider and abettor concept, provided that the landlord (Janis) knew what use his tenant (Merino) intended to put the rented house to. The reason for this concession may be that it would be difficult to conceal the purpose of such a rental from the landlord. If a gambling enterprise to succeed needs to enlist a landlord who knows the purpose of the rental, punishing him will make life significantly more difficult for the enterprise. This prospect makes it easier to defend the imposition of aider and abettor liability than it was in our hypothetical example of the prostitute’s purchase of an address book.

The tape-recorded conversation from which we quoted earlier makes clear that Janis learned of the house’s use as a wire-room eventually, but possibly only after that use had ceased. It is true that he offered Orlando the key so that it could be reopened as a wireroom, but he was never taken up on his offer (perhaps because the FBI shut down Orlando’s enterprise three weeks later) and the wireroom never was reopened in his house. There is considerable doubt whether that rather empty gesture of offering the key could be thought to aid and abet the enterprise — it sounds more like attempted aiding and abetting, a crime that the American Law Institute thinks should exist, Model Penal Code § 2.06(3)(a)(ii), but that probably does not exist under federal law because of the interpretation that the courts place on aiding and abetting, United States v. Powell, 806 F.2d 1421, 1424 (9th Cir.1986); United States v. Barnett, 667 F.2d 835, 841-42 (9th Cir.1982), combined with the absence of a general federal attempt statute. A critical question, therefore, was whether Janis knew when he rented the house that it was destined for use as a wireroom. There was no direct evidence of his knowledge, but that was not necessary, and certainly it would have been proper to instruct the jury to this effect. The jury could have inferred from Arnold’s testimony and the recorded conversation with Orlando that Janis had known what use the rented house would be put to.

It is not the purpose of the ostrich instruction to tell the jury that it does not need direct evidence of guilty knowledge in order to find such knowledge beyond a reasonable doubt. Still less is it to enable conviction of one who merely suspects that he may be involved with wrongdoers. At times during the oral argument of this appeal the government’s able lawyer came close to suggesting that the proper office of the ostrich instruction is to enable conviction upon the basis of constructive notice — if a reasonable man who knew what *1228Janis knew would have inquired further and discovered the illegal activity, Janis is an aider and abettor. Not so. Aider and abettor liability is not negligence liability. The abettor and aider must know that he is assisting an illegal activity. We add that if it were the purpose of the ostrich instruction to enable conviction for mere negligence, the instruction would be worded differently.

The most powerful criticism of the ostrich instruction is, precisely, that its tendency is to allow juries to convict upon a finding of negligence for crimes that require intent. United States v. Ramsey, supra, 785 F.2d at 190; Robbins, The Ostrich Instruction: Deliberate Ignorance as a Criminal Mens Rea, 81 J.Crim.L. & Criminology 191 (1990). The criticism can be deflected by thinking carefully about just what it is that real ostriches do (or at least are popularly supposed to do). They do not just fail to follow through on their suspicions of bad things. They are not merely careless birds. They bury their heads in the sand so that they will not see or hear bad things. They deliberately avoid acquiring unpleasant knowledge. The ostrich instruction is designed for cases in which there is evidence that the defendant, knowing or strongly suspecting that he is involved in shady dealings, takes steps to make sure that he does not acquire full or exact knowledge of the nature and extent of those dealings. A deliberate effort to avoid guilty knowledge is all the guilty knowledge the law requires. United States v. Josefik, 753 F.2d 585, 589 (7th Cir.1985). “[T]o know, and to want not to know because one suspects, may be, if not the same state of mind, the same degree of fault.” AMPAT/Midwest, Inc. v. Illinois Tool Works Inc., 896 F.2d 1035, 1042 (7th Cir.1990). See also United States v. Kehm, 799 F.2d 354, 362 (7th Cir.1986). A good example of a case in which the ostrich instruction was properly given is United States v. Diaz, 864 F.2d 544, 550 (7th Cir.1988). The defendant, a drug trafficker, sought “to insulate himself from the actual drug transaction so that he could deny knowledge of it,” which he did sometimes by absenting himself from the scene of the actual delivery and sometimes by pretending to be fussing under the hood of his car.

The government points out that the rented house in Bridgeview was a short way down a side street from the thoroughfare on which Janis commuted to work daily. It would have been easy for him to drive by the house from time to time to see what was doing, and if he had done so he might have discovered its use as a wireroom. He did not do so. But this is not the active avoidance with which the ostrich doctrine is concerned. It would be if the house had been on the thoroughfare, and Janis, fearful of what he would see if he drove past it, altered his commuting route to avoid it. Janis failed to display curiosity, but he did nothing to prevent the truth from being communicated to him. He did not act to avoid learning the truth.

The critical question so far as Janis's guilt or innocence was concerned is simple (to pose, not necessarily to answer): what did Janis know? Did he know that he was renting his house for use as a wire-room, or did he believe that he was renting his house to the Orlando crew for some private purpose of theirs unconnected with gambling? (Even criminals have private lives.) The ostrich instruction did not advance this inquiry; it confused it, by pointing the jury to circumstances of deliberate avoidance of knowledge that did not exist. As we said in United States v. Bigelow, 914 F.2d 966, 971 (7th Cir.1990), when the facts require the jury to make a “binary choice” between “actual knowledge” and “complete innocence,” the ostrich instruction should not be given. See also United States v. Alvarado, 838 F.2d 311, 315-16 (9th Cir.1988).

The true intermediate case between a clearly proper giving of the ostrich instruction because the defendant did physical acts to insulate himself from knowledge, as in Diaz, and the clearly improper giving of the instruction because the only issue is the defendant’s actual knowledge or complete ignorance, is the case of purely psychological avoidance. Josefik was such a case. “It is inconceivable that Josefik did not *1229believe that the scotch was stolen, and in context all the challenged instruction [the ostrich instruction] meant is that he could not get off the hook simply by resolutely refusing to find out for sure whether it was stolen.” 753 F.2d at 589. In other words, the deliberate effort to avoid guilty knowledge that we said is all the guilty knowledge the law requires can be a mental, as well as a physical, effort—a cutting off of one’s normal curiosity by an effort of will. There is no evidence of either sort of effort here.

The error in giving the ostrich instruction in this case may have been harmless, since there was plenty of evidence that Janis knew, when he rented the house, what it would be used for. But the government does not argue that if there was error in giving the ostrich instruction the error was harmless, and by not arguing harmless error it has waived the point.

Although we think it was an error to give the ostrich instruction in this case, we do not agree with the further suggestion that such an instruction has no possible place in an aider and abettor case. It is true that to be guilty the alleged aider and abettor must want to make the principal’s venture succeed, which may seem to imply that he must know what that venture is. But we think not, for the reasons stated in United States v. Kehm, supra, 799 F.2d at 362, in rejecting the parallel argument that the ostrich instruction should never be given in a conspiracy ease. We have already given an example, based on the facts of this case, of how an aider and abettor can be an ostrich. If Janis strongly suspected that his house was being used as a wire-room, and to avoid confirming his suspicions he expended resources on avoiding a confrontation with the facts (as by taking a circuitous route to work), then his actions, far from showing that he was not an aider and abettor under Judge Hand’s formulation, would show that he was—would show that he wanted the gambling enterprise to succeed so badly that he expended time and effort to avoid acquiring proof of the enterprise’s character and with it indisputably guilty knowledge that might compel him to withdraw for fear of being prosecuted with no chance of avoiding conviction by pleading ignorance of what the enterprise was up to.

We need to discuss one last issue, because it is certain to recur at the new trial: whether Janis was entitled to have the jury instructed on the statute of limitations. He was indicted more than the statutory period after the house he had rented to Merino and Pluta ceased being used for gambling purposes. The government persuaded the district judge that this did not matter, for two reasons: the telephone conversation with Orlando at which Janis offered him the key occurred within the statutory period; and the gambling enterprise itself lasted into the statutory period.

The first reason is unsound because it was a question for the jury whether the offer of the key was an act either of aiding and abetting or of actually conducting the gambling enterprise. The offer was not accepted, so did not actually aid the enterprise, and we have already expressed our considerable skepticism that attempting to aid and abet is a federal crime. It is not much more plausible to picture the unaccepted offer of the key as the “conducting” of a gambling enterprise, though a lot of the things done in any enterprise miscarry, and perhaps Janis’s futile offer of the key to his house eould be seen as one of them. (Perhaps by the same token the offer could be viewed as aiding and abetting—not just attempting to aid and abet—the conducting of the gambling enterprise, after all.) In any event the jury should have been asked whether the offer of the key was a culpable act, and directed to acquit Janis if it was not—unless, perhaps, to come to the government’s second point, the participant in the conducting of an illegal gambling enterprise is to be equated to a coeonspirator. The gambling enterprise was a conspiracy and did continue into the statutory period, but Janis was charged not as a conspirator but (so far as relevant here) as a participant in the conducting of an illegal gambling enterprise. The acts of a conspirator are attributed to the other conspirators, unless and until the others by an *1230affirmative act of withdrawal, of which there is no suggestion in this case, terminate their participation in the conspiracy. United States v. Patel, 879 F.2d 292 (7th Cir.1989); United States v. Borelli, 336 F.2d 376, 388-89 (2d Cir.1964).

Is there a similar rule for copartici-pants in an illegal enterprise—“co-schemers,” as the government calls them? Or for aiders and abettors? But how does one withdraw from an agreement that one is not a party to? For you can be an aider and abettor of an offense without being a co-conspirator of the principal offender, if for example you assist the offender without having agreed to do so—he might not even be aware of your assistance. United States v. Krogstad, 576 F.2d 22, 29 (3d Cir.1978). It would not follow that your liability for his acts would be as extensive as if there had been a conspiracy, United States v. Blitz, 533 F.2d 1329, 1346-47 (2d Cir.1976)—though there is plenty of authority that it would. United States v. Sellers, 483 F.2d 37, 45 (5th Cir.1973), and cases cited there.

The government’s only response to these conundra has been to cite three eases (two in its brief, one at oral argument), without disclosing that these are conspiracy cases rather than cases involving either the conducting of an illegal enterprise or aiding and abetting. A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is a good point despite a lack of supporting authority or in the face of contrary authority, forfeits the point. Bob Willow Motors, Inc. v. General Motors Corp., 872 F.2d 788, 795 (7th Cir.1989); Fed.R.App.P. 28(a)(4). We will not do his research for him. Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir.1986). The principles of waiver apply to the government in criminal cases as much as to a private party in civil litigation. United States v. Malin, 908 F.2d 163, 167 (7th Cir.1990); United States v. Woods, 888 F.2d 653, 654 (10th Cir.1989); cf. Thomas v. Indiana, 910 F.2d 1413, 1415 (7th Cir.1990). We would not, in a case to which no previous cases were pertinent, consider a litigant to have waived his challenge merely because he had cited cases that were not on point; for it is the rare lawyer who will acknowledge that he has no cases to cite. But having found no cases on point the government could still have given us reasons for extending the conspiracy cases to cases of aiding and abetting or of conducting an illegal enterprise. The government's submission is limited to three cases that do not stand for what the government claims they stand for. That is not enough to preserve the point. Janis is entitled on retrial to a statute of limitations instruction.

He also questions the denial of his motion to sever his case from Giovannetti’s, but the issue is moot because the new trial that we are ordering will have but one defendant: Janis. To summarize, then, Giovannetti’s conviction is affirmed, but Janis’s conviction is reversed and the case is remanded for a new trial for him in conformity with the principles set forth in this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND Remanded.

*247Mr. Justice Jackson

delivered the opinion of the Court.

This would have remained a profoundly insignificant case to all except its immediate parties had it not been so tried and submitted to the jury as to raise questions both fundamental and far-reaching in federal criminal law, for which reason we granted certiorari.1

On a large tract of uninhabited and untilled land in a wooded and sparsely populated área of Michigan, the Government established a practice bombing range over which the Air Force dropped simulated bombs at ground targets. These bombs consisted of a metal cylinder about forty inches long and eight inches across, filled with sand and enough black powder to cause a smoke puff by which the strike could be located. At various places about the range signs read “Danger — Keep Out— Bombing Range.” Nevertheless, the range was known as good deer country arid was extensively hunted.

Spent bomb casings were cleared from the targets and thrown into piles “so that they will be out of the way.” They were not stacked or piled in any order but were dumped in heaps, some of which had been accumulating for four years or upwards, were exposed to the weather and rusting away.

Morissette, in December of 1948, went hunting in this area but did not get a deer. He thought to meet expenses of the trip by salvaging some of these casings. He loaded three tons of them on his truck and took them to a nearby farm, where they were flattened by driving a tractor over them. After expending this labor and trucking them to market in Flint, he realized $84.

Morissette, by occupation, is a fruit stand operator in summer and a trucker and scrap iron^ollector in winter. An honorably discharged veteran of-World.War'll, *248he enjoys a good name among his neighbors and has had no blemish on his record more disreputable than a conviction for reckless driving.

The loading, crushing and transporting of these casings were all in broad daylight, in full viéw of passers-by, without the slightest effort at concealment. When an investigation was started, Morissette voluntarily, promptly and candidly told the whole story to the authorities, saying that he had no intention of stealing but thought the property was abandoned, unwanted and considered of no value to the Government. He was indicted, however, on the charge that he “did unlawfully, wilfully and knowingly steal and convert” property of the United States of the value of. $84, in violation of 18 U. S. C. § 641, which provides that “whoever embezzles, steals, purloins, or knowingly converts” government property is punishable by fine and imprisonment.2 Morissette was convicted and sentenced to imprisonment for two months or to pay a fine of $200. The Court of Appeals affirmed, one judge dissenting.3

On his trial, Morissette, as he had at all times told investigating officers, testified that from appearances he believed the casings were cast-off and abandoned, that he did not intend to steal the property; and took it with no *249wrongful or criminal intent. The trial court, however, was unimpressed, and ruled: “{H]e took it because he thought it was abandoned and he knew he was on government property. . . . That is no defense. ... I don’t think anybody can have the defense they thought the property was abandoned on another man’s piece of property.” The court stated: “I will not permit you to show this man thought it was abandoned. ... I hold in this case that there is no question of abandoned property.” The court refused to submit or to allow counsel to argue to the jury whether Morissette acted with innocent intention. It charged: “And I instruct you that if you believe the testimony of the government in this case, he intended to take it. . . . He had no right to take this property. . . . [A]nd it is no defense to claim that it was abandoned, because it was on private property. . . . And I instruct you to this effect: That.if this young man took this property (and he says he did), without any permission (he says he did), that was on the property of the United States Government (he says it was), that it was of the value of one cent or more (and evidently it was), that he is guilty of the offense charged here. If you believe the government, he is guilty. . . . The question on intent is whether or not he intended to take the property. He says he did. Therefore, if you believe either side, he is guilty.” Petitioner’s counsel contended,“But the taking must have been with a felonious intent.” The court ruled, however: “That is presumed by his own act.”

The Court of Appeals suggested that “greater restraint in expression should have been exercised,” but affirmed .the conviction because, “As we have interpreted the statute, appellant was guilty of its violation beyond a shadow of doubt, as evidenced even by his owii admissions.” Its construction of'the statute is that it creates several separate and distinct offenses, one being knowing - *250conversion of government property. The court ruled that this particular offense requires no element of criminal intent. This conclusion was thought to be required by the failure of Congress to express such a requisite and this Court’s decisions in United States v. Behrman, 258 U. S. 280, and United States v. Balint, 258 U. S. 250.

I.

In those cases this Court did construe mere omission from a criminal enactment of any mention of criminal intent as dispensing with it. If they be deemed precedents for principles of construction generally applicable to federal penal statutes, they authorize this conviction. Indeed, such adoption of the literal reasoning announced in those cases would do this and more — it would sweep out of all federal crimés, except when expressly preserved, the ancient requirement of a culpable state of mind. We think a résumé of their historical background is convincing that an effect has been ascribed to them more comprehensive than was contemplated and one inconsistent with our philosophy of criminal law.

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.4 A relation between some mental element and punishment for a *251harmful act is almost as instinctive as the child’s familiar exculpatory “But I didn’t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public'prosecution.5 Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Black-stoned sweeping statement that to constitute any crime there must first be a “vicious will.” 6 Common-law commentators of the Nineteenth Century early pronounced the same principle,7 although á few exceptions not relevant to. our presént problem came to be recognized.8

Crime,' as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individu*252alism and took deep and early root , in American soil.9 As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation: Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law.10 The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as “felonious intent,” “criminal intent,” “malice aforethought,” “guilty knowledge,” “fraudulent intent,” “wilfulness,” “scienter,” to denote guilty knowledge, or “mens^rea” to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to.protect those who were not blameworthy in mind from conviction of infamous common-law crimes.

However, the Balint and Behrman offenses belbng to a category of another character, with very different antecedents and origins. The crimes there involved depend *253on no mental element but consist only of forbidden acts or omissions. This, while not expressed by the Court, is. made clear from examination of a century-old but accelerating tendency, discernible both here11 and in England,12 to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution *254multiplied the- number of workmen exposed to injury from increasingly powerful and complex piechanisms, driven b.y freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes, and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and driv- - ers were not to obsérve new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when 'those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. ' Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or^ welfare.

While many of these duties are sanctioned by a more strict civil liability,13 lawmakers, whether wisely or not,14 *255have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called “public welfare offenses.” These cases do not fit neatly into any of such accepted classifications of common-láw offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in .'the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many *256violations of such/regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law se'eks to minimize. While such.offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for. their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences.are injurious or not according to fortuity. Hence, legislation applicable' to such offenses,- as a matter of policy, does not specify intent as a necessary element. The accused,-if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender’s reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving.

The pilot of the movement in this country appears to be a holding that a tavernkeeper could be convicted for selling liquor to an habitual drunkard even if he did not know the buyer to be such. Barnes v. State, 19 Conn. 398 (1849). Later came Massachusetts holdings that convictions for selling adulterated milk in violation of statutes forbidding such sales require no allegation or proof that defendant knew of the adulteration. Commonwealth v. Farren, 9 Allen 489 (1864); Commonwealth v. Nichols, 10 Allen 199 (1865); Commonwealth v. Waite, 11 Allen 264 (1865). Departures from the common-law tradition, *257mainly- of these general classes, were reviewed and their rationale appraised by Chief Justice Cooley, as follows:

“I agree that as a rule there can be no crime without a criminal intent; but this is not by any means a universal rule. . . . Many statutes which arfe in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the. public which shall render violation impossible.” People v. Roby, 52 Mich. 577, 579, 18 N. W. 365, 366 (1884).

After the turn of the Century, a new use for crimes-without intent appeared when New York enacted numerous and novel regulations of tenement houses, sanctioned by money penalties. Landlords contended that a guilty intent was essential to establish a violation. Judge Cardozo wrote the answer:

"The defendant asks us to test the meaning of this statute by standards applicable to statutes that govern infamous crimes. The analogy, however, is deceptive. The element of conscious wrongdoing, the guilty mind accompanying, the guilty act, is associated with the concept of crimes that are punished as infamohs. . . . Even there it is not an invariable element. . . . But in the prosecution of minor offenses, there is a wider range of practice and of power. Prosecutions for petty penalties have always _ constitutfed in our law a class by themselves. ... That is true though the prosecution is criminal in form.” Tenement House Department v. McDevitt, 215 N. Y. 160, 168, 109 N. E. 88, 90 (1915).

Soon, employers advanced the same contention as to violations of regulations prescribed by a new labor law. Judge Cardozo, again for-the court, pointed out, as a basis *258for penalizing violations whether intentional or not, that they were punishable only by fine “moderate in amount,” but cautiously added that in sustaining the power so to fine unintended violations “we are not to be understood as sustaining to a like length the power to imprison. We leave that question open.” People ex rel. Price v. Sheffield Farms Co., 225 N. Y. 25, 32-33, 121 N. E. 474, 477 (1918).

Thus, for diverse but reconcilable reasons, state courts converged on the same result, discontinuing inquiry into intent in a limited class of offenses against such statutory regulations.

Before long, similar questions growing out of federal legislation reached this Court. Its judgments were in harmony with this consensus of state judicial opinion, the existence of which may have led the Court to overlook the need for full exposition of their rationale in the context of federal law. In overruling a contention that-there can be no conviction on an indictment which,makes no charge of criminal intent but alleges only making of a sale of a narcotic forbidden by law, Chief Justice Taft, wrote:

“While the general rule.at common law was that-the scienter was a necessary element in the indictment and .proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it ... , there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. . . .” United States v. Balint, supra, 251-252.

He referred, however, to “regulatory measures in the exercise of what is called the police power where the eni*259phasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se,” and drew hisi citation of supporting authority chiefly from state court cases dealing with regulatory offenses. Id., at 252.

On the same day, the Court determined that an offense under the Narcotic Drug Act does not require intent, saying, “If the offense be a statutory one, and intent or knowledge is not. made an element of it, the indictment need not charge such knowledge or intent.” United States v. Behrman, supra, at 288.

Of course, the purpose of every statute would be '“obstructed” b;^ requiring a finding of intent, if we assume that it had a purpose to convict without it. Therefore, the obstruction rationale does not. help us to learn the purpose of the omission by Congress. And since no federal crime .can exist except by force of statute, the reasoning of the Behrman opinion, if read literally, would work far-reaching changes in the composition óf all federal crimes. Had such a result been contemplated, it could hardly have escaped mention by a Court which numbered among its members one especially interested and informed concerning the importance of intent in common-law crimes.15 This might be the more expected since the Behrman holding did call forth his dissent, in which Mr. Justice McReynolds and Mr. Justice Brandéis joined, omitting any such mention.

It was not until recently that the Court took occasion inore explicitly to relate abandonment of the ingredient, of intent, not merely with considerations of expediency in obtaining convictions, nor with the malum prohibitum classification of the crime, but with the peculiar nature and quality of the offense. We referred to “. . . a now familiar type of legislation whereby penalties-serve as *260effective means of regulation,” and continued, “such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.” But we warned: “Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting.” United States v. Dotterweich, 320 U. S. 277, 280-281, 284.16

Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static. The conclusion reached in the Balint and Behrman cases has our approval and adherence for the circumstances to which it was there applied. A quite different question here is whether we will expand the doctrine of crimes without intent to include those charged here.

Stealing, larceny, and its variants and equivalents, were among the earliest offenses known to the law that existed before legislation;17 they are invasions of rights of property which stir a. sense of insecurity in the whole community and arouse public demand for retribution, the penalty is high and, when a sufficient amount is involved, the infamy is that of a felony, which, says Maitland, is “. . . as bad a word as you can give' to man or thing.” 18 State courts of last resort, on whom fall the heaviest bur*261den of interpreting criminal law in this country, have consistently retained the requirement of intent in larceny-type offenses.19 If any state has deviated, the exception has neither been called to our attention nor disclosed by our research.

Congress, therefore, omitted any express prescription of criminal intent from the enactment before us in the light of an unbroken course of judicial decision in all *262constituent states of the Union holding intent inherent in this class of offense, even when not expressed in a statute. Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already so well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense new to general law, for whope definition the courts have no guidance except the Ac& Because the offenses before this Court in the Balirit and Behrman cases were of this latter class, we cannot accept them as authority for eliminating intent from offenses incorporated from the common law. Nor do "exhaustive studies of state court cases disclose any. well-considered decisions applying the doctrine of crime without intent to such enacted common-law offenses,20 although a few deviations are notable as illustrative of the danger inherent in the Government’s contentions here.21

*263The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common-law crimes on judicial initiative. -

The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly22 admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute. And where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise, instructed. In such case, absence of. contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.

We hold that mere omission from § 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced.

II.

It is suggested, however, that the history and purposes of § 641 imply something more affirmative as to elimination of intent from at least one of the, offenses charged under it in,, this case. The argument does not contest *264that criminal intent is retained in the offenses.of embezzlement, stealing and purloining, as incorporated into this section. But it is urged that Congress joined with those, as a new, separate and distinct^ offense, knowingly to convert government property, under circumstances which imply that it is an offense in which the mental element of intent is not necessary.

Congress has been alert to what- often is a decisive function of some mental element in crime. It has seen fit to prescribe that an evil state of mind, described variously in one or more such terms as “intentional,” “wilful,” “knowing,” “fraudulent” or “malicious,” will make criminal an otherwise indifferent act,23 or increase the degree of the offense or its punishment.24 Also, it has *265at times required a specific intent or purpose which will require some specialized knowledge or design for some evil beyond the common-law intent to do injury.25 The law under some circumstances recognizes good faith or blameless intent as a defense, partial defense, or as an element to be considered in mitigation of punishment.26 And. treason — the one crime deemed grave enough for definition in our Constitution itself — requires not only the duly witnessed overt act of aid and comfort to the enemy but also the mental element of disloyalty or adherence to the enemy.27 In view of the caré that has been bestowed upon the subject, it is significant that we have not found, nor has our attention been directed to, any instance in which Congress has expressly eliminated the mental element from a crime taken over from the common law.

The section with which we are here concerned was enacted in 1948, as a consolidation of four former sections of Title 18, as adopted in 1940, which in turn were derived from two sections of the Revised Statutes. The pertinent legislative and judicial history of these anteced*266ents, as well as of § 641, is footnoted.28 We find no other purpose in the 1948 re-enactment than to collect from scattered sources crimes so kindred as to belong in *267one category. Not one of these had been interpreted to be a crime without intention and no purpose to differentiate between them in the matter of intent is discloséd. *268No inference that some were and some were not crimes of intention can be drawn from any difference in classification or punishment. Not one fits the congressional classification of the petty offense; each is, at its least, a misdemeanor, and if the amount involved is one hundred *269or more dollars each is a felony.29 If one crime without intent has been smuggled into a section whose dominant offenses do require intent, it was put in ill-fitting and compromising company. The Government apparently did not believe that conversion stood so alone when it *270drew this one-count indictment to charge that Morissette “did unlawfully, wilfully and knowingly steal and convert to his own use.” 30

Congress, by the language of this section, has been at pains to incriminate only “knowing” conversions. But, at common law,, there are unwitting acts which constitute conversions. In the civil tort, except for recovery of exemplary damages, the defendant’s knowledge, intent, motive, mistake, and good faith are generally irrelevant.31 If one takes property which turns out to belong to another, his innocent intent will not shield him from making restitution or indemnity, for. his well-meaning may not be allowed to deprive another of his own.

Had the statute applied to conversions without qualification, it would have made., crimes of all unwitting, inadvertent and unintended conversions. Knowledge, of course, is not identical with intent and may not have been the most apt words of limitation. But knowing conver*271sion requires more than knowledge that defendant was taking the property into his possession. He must have had knowledge of the facts, though not necessarily the law, that made the taking a conversion. In the case before us, whether the mental element that Congress required be spoken of as knowledge or as intent,'would not seem to alter its bearing on guilt. For it is not apparent how Morissette could have knowingly or intentionally converted property that he did not know could be converted, as would be the case if it was in fact abandoned or if he truly believed it to be abandoned and unwanted property.

It is said, and at first blush the claim has plausibility, that, if we construe the statute to require a mental element as part of criminal conversion, it becomes a meaningless duplication of the offense of stealing, and that conversion can be given meaning only by interpreting it to disregard intention. But here again a broader view of the evolution of these crimes throws a different light on the legislation.

It is not surprising if there is considerable overlapping in the embezzlement, stealing, purloining and knowing conversion grouped in this statute. What has concerned codifiers of the larceny-type offense is that gaps or crevices have separated particular crimes of this general class and guilty men have escaped through the breaches. The books contain a surfeit of cases drawing fine distinctions between slightly different circumstances under which one may obtain wrongful advantages from another’s property. The codifiers wanted to reach all such instances. Probably every stealing is a conversion, but certainly not every knowing conversion is a stealing. “To steal means to take away from, one in lawful possession without right with the intention to keep wrongfully.” (Italics added.) Irving Trust Co. v. Leff, 253 N. Y. 359, 364, 171 N. E. 569, 571. Conversion, however, may be consummated without *272any intent to keep and without any wrongful taking, where the initial possession by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one’s custody for limited use. Money rightfully taken into one’s custody may be converted without any intent to keep or embezzle it merely by commingling it with the custodian’s own, if he was under a duty to keep it separate and intact. It is not difficult to think of intentional and knowing abusés and unauthorized uses of government property, that might be knowing conversions but which could not be reached as embezzlement, stealing or purloining. Knowing' conversion adds significantly to the range of protection of government property without interpreting it to punish unwitting conversions.

The purpose which we here attribute to Congress parallels that of codifiers of common law in England32 and in the States33 and demonstrates that the serious prob*273lexn in drafting such a statute is to avoid gaps and loopholes between offenses. It is significant that the English and State codifiers have, tried to cover the same type of conduct that we are suggesting as the purpose of Congress here, without, however, departing from the common-law ■tradition that these are crimes of intendment.

„We find no grounds for inferring any affirmative instruction from Congress to eliminate intent from any offense with which this defendant was charged.

III.

As we read the record, this case was tried on the theory that even if criminal intent were essential its presence (a) should be decided by.the court (b) as a presumption *274of law, apparently conclusive, (c) predicated upon the isolated act of taking rather than upon all of the circumstances. In each of these respects we believe the trial court was in error.

Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury. State court authorities cited to the effect that intent is relevant in larcenous crimes are equally emphatic and uniform that it is a jury issue. The settled practice and its reason are well stated by Judge Andrews in People v. Flack, 125 N. Y. 324, 334, 26 N. E. 267, 270:

“It is alike the general rule of law and the dictate of natural justice that to constitute guilt there must be not only a wrongful act, but a criminal intention. Under our system (unless in exceptional cases), both must be found by the jury to justify a conviction.for crime. However clear the proof may be, or however incontrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be rulecl as a question of law, but must always be submitted to the jury. Jurors may be perverse; the ends of justice may be defeated by unrighteous verdicts, but so long as the functions of the judge and jury are distinct, the one responding to the law, the other to the facts, neither can invade the province of the other without destroying the significance of trial by court and jury. . . .”

It follows that the trial coürt may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a “presumption” a conclusion which a court thinks probable from given facts. The Supreme Court of Florida, for example, in a larceny case, from .selected circumstances which are present in this case Ras *275declared a presumption of exactly opposite effect from the one announced by the trial court here:

"... But where the taking is open and there is no subsequent attempt to conceal the property, and' no denial, but an avowal, of the taking a strong presumption arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a conviction is authorized. . . Kemp v. State, 146 Fla. 101, 104, 200 So. 368, 369.

We think presumptive intent has no place in this case. A conclusive presumption which- testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect.34 In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the. crime. Such incriminating presumptions are not to be improvised by the judiciary. Even congressional power to facilitate convictions by substituting presumptions for proof is not without limit. Tot v. United States, 319 U. S. 463.

Moreover, the conclusion supplied by presumption in this instance was one of intent to steal the casings, and-it was based on the mere fact that defendant took them. The court thought the only question was, “Did he intend *276to take thé property?” That the removal of them was a conscious and intentional act was admitted. But that isolated fact is not an adequate basis on which the jury should find the criminal intent to steal or knowingly convert, that is, wrongfully to deprive another of possession of property. Whether that intent existed, the jury must determine, not only from the act of taking, but from that together with defendant’s testimony and all of the surrounding circumstances.

Of course, the jury, considering Morissette’s awareness that these casings were on government property, his failure to seek any permission for their removal and his self-interest as a witness, might have disbelieved his profession of innoceht intent and concluded that his assertion of a belief .that the casings were abandoned was an afterthought. Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges. They might have concluded that the heaps of spent casings left in the hinterland to rust away presented an appearance of unwanted and abandoned junk, and that lack of any conscious- deprivation of property or intentional injury was indicated by Morissette’s good character, the openness of the taking, crushing and transporting of the casings, and the candor with which it was all admitted. They might have refused to brand Morissette as.a thief. Had they done so, that too would have been the end of the matter.

Reversed.

Mr. Justice Douglas concurs in the result.

Mr. Justice Minton took no part in the considération or decision of this case.

YETKA, Justice.

On May 29, 1985, the state filed a criminal complaint in Hennepin County Municipal Court against George Joseph Guminga, defendant. Guminga moved to dismiss the charge on August 22,1985. The court held a hearing on August 28 and subsequently denied the motion and certified the present question of law to the Minnesota Court of Appeals on October 29, 1985. The court of appeals then requested this court to take jurisdiction over the certification, which was granted on December 16, 1985.

On March 29, 1985, in the course of an undercover operation, two investigators for the City of Hopkins entered Lindee’s Restaurant, Hopkins, Minnesota, with a 17-year-old woman. All three ordered alcoholic beverages. The minor had never been in Lindee’s before, and the waitress did not ask the minor her age or request identification. When the waitress returned with their orders, the minor paid for all the drinks. After confirming that the drink contained alcohol, the officers arrested the waitress for serving intoxicating liquor to a minor in violation of Minn.Stat. § 340.73 (1984). The owner of Lindee’s, defendant George Joseph Guminga, was subsequently charged with violation of section 340.73 pursuant to Minn.Stat. § 340.941 (1984), which imposes vicarious criminal liability on an employer whose employee serves intoxicating liquor to a minor.1 The state *345does not contend that Guminga was aware of or ratified the waitress’s actions.

Guminga moved to dismiss the charges on the ground that section 340.941 violates the due process clauses of the federal and state constitutions. The state contended that the issue was not justiciable and that, even if justiciable, the statute was constitutional. After holding a hearing on August 28, 1985, the court denied the motion to dismiss.

The municipal court found that, while, under Minnesota case law, section 340.941 has apparently withstood constitutional scrutiny, the argument against its constitutionality is persuasive enough to merit certification of the issue. Finding State v. Young, 294 N.W.2d 728 (Minn.1980), controlling, the court acknowledged that language in Young is subject to the interpretation that the case was decided on justicia-bility grounds and did not reach the constitutional challenge. The court declined to adopt this interpretation, however, and found that the criminal sanctions imposed by section 340.941 were held constitutional in Young. However, the court found persuasive the argument against the constitutionality of such a statute adopted by the Georgia Supreme Court in Davis v. City of Peachtree City, 251 Ga. 219, 304 S.E.2d 701 (1983), and certified the question to the Minnesota Court of Appeals.

The court of appeals, pursuant to the June 4, 1985 order of this court regarding certified questions from trial courts, requested this court to take jurisdiction over the question, and the request was granted on December 16, 1985.

The certified question of law before this court is as follows:

Whether Minn.Stat. § 340.941, on its face, violates the defendant’s right to due process of law under the Fourteenth Amendment to the United States Constitution and analogous provisions of the Constitution of the State of Minnesota.

We find that the statute in question does violate the due process clauses of the Minnesota and the United States Constitutions and thus answer the question in the affirmative.

Guminga argues that section 340.941 violates due process as an unjustified and unnecessary invasion of his personal liberties. He maintains that the public interest in prohibiting the sale of liquor to minors does not justify vicarious criminal liability for an employer since there are less burdensome ways to protect the public interest. The constitutionality of the statute has not been squarely addressed by the court, he argues, since earlier cases did not directly raise the issue of whether the statute is unconstitutional.

The state contends that this court originally upheld the constitutionality of section 340.941 in State v. Lundgren, 124 Minn. 162, 144 N.W. 752 (1913), which it recently reaffirmed in Young. According to the state, vicarious criminal liability for employers whose employees sell alcohol to minors is a necessary part of liquor control.

MinmStat. § 340.73 (1984) provides criminal penalties for any person selling intoxicating liquor to a minor:

Subdivision 1. It is unlawful for any person, except a licensed pharmacist to sell, give, barter, furnish, deliver, or dispose of, in any manner, either directly or indirectly, any intoxicating liquors or nonintoxicating malt liquors in any quantity, for any purpose, to any person under the age of 19 years, or to any obviously intoxicated person.

Subd. 2. [Repealed, 1984 c 626 s 14]

Subd. 3. Whoever in any way procures intoxicating liquor or nonintoxicating malt liquor for the use of any person named in this section shall be deemed to have sold it to that person. Any person violating any of the provisions of this section is guilty of a gross misdemeanor.

Minn.Stat. § 340.941 (1984) imposes vicarious criminal liability on the employer for an employee’s violation of section 340.73:

Any sale of liquor in or from any public drinking place by any clerk, barkeep, or other employee authorized to sell liquor in such place is the act of the employer as well as that of the person actu*346ally making the sale; and every such employer is liable to all the penalties provided by law for such sale, equally with the person actually making the same.

Under Minn.Stat. § 609.03 (1984), a defendant who commits a gross misdemeanor may be sentenced to “imprisonment for not more than one year or to payment of a fine of not more than $3,000 or both.” In addition, a defendant convicted under section 340.941 may, at the discretion of the licensing authority, have its license suspended, revoked or be unable to obtain a new license. Minn.Stat. §§ 340.13, .135, .19 (1984); see Op. Minn. Att’y Gen. 218-G-14 (April 8, 1940). As a gross misdemeanor, a conviction under section 340.941 would also affect a defendant’s criminal history score were he or she to be convicted of a felony in the future. Minn.Sent.Guide. II.B.3.

The preliminary issue is whether this court has already ruled on the constitutionality of section 340.941. The original version of the present statute was passed in 1905. Minn. Rev. Laws § 1565 (1905). In State v. Lundgren, 124 Minn. 162, 144 N.W. 752 (1913), the defendant, a bar owner whose bartender served liquor to a minor without the defendant’s knowledge and contrary to his instructions, challenged the vicarious criminal liability imposed by the statute. The court found that the criminal liability imposed by the statute, although “drastic,” bears a reasonable relationship to the public policy it is to address. In State v. Young, 294 N.W.2d 728 (Minn.1980), this court cited Lundgren when a defendant whose employee sold liquor to a minor without his knowledge or authority challenged section 340.941 as a violation of due process. While the court stated that imprisonment under section 340.941 would probably be unconstitutional,2 it found that, since only a fine had been imposed, there had been no due process violation.

This case presents a different situation. Since this is not an appeal from a conviction, we do not yet know whether, if found guilty, Guminga would be subjected to imprisonment, a suspended sentence, or a fine. Even if there is no prison sentence imposed, under the new sentencing guidelines, a gross misdemeanor conviction will affect his criminal history score were he to be convicted of a felony in the future. Young, on the other hand, was decided before the sentencing guidelines took effect. This case presents a direct challenge to the constitutionality of section 340.941.

(⅞⅛ find that criminal penalties based on vicarious liability under Minn.Stat. § 340.-941 are a violation of substantive due process and that only civil penalties would be constitutional^) A due process analysis of a statute involves a balancing of the public interests protected against the intrusion on personal liberty while taking into account any alternative means by which to achieve the same end. See Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1367, 6 L.Ed.2d 625 (1961); Barton Contracting Co., Inc. v. City of Afton, 268 N.W.2d 712, 715 (Minn.1978) (“[T]he requirements of due process must be measured according to the nature of the government function involved and whether or not private interests are directly affected by the government action.”); W. LaFave & A. Scott, Handbook on Criminal Law § 20 (1972). Section 340.941 serves the public interest by providing additional deterrence to violation of the liquor laws. The private interests affected, however, include liberty, damage to reputation and other future disabilities arising from crimi*347nal prosecution for an act which Guminga did not commit or ratify. Not only could Guminga be given a prison sentence or a suspended sentence, but, in the more likely event that he receives only a fine, his liberty could be affected by a longer presumptive sentence in a possible future felony conviction. Such an intrusion on personal liberty is not justified by the public interest protected, especially when there are alternative means by which to achieve the same end, such as civil fines or license suspension, which do not entail the legal and social ramifications of a criminal conviction. See Model Penal Code § 1.04 comment (b) (1985).3

We decline, however, to rewrite section 340.941 by holding that it can be enforced only by civil penalties. That is more properly a legislative function.

The dissent cites the Model Penal Code; LaFave and Scott, Handbook on the Criminal Law; and Sayre, Criminal Responsibility for the Acts of Another, 43 Harv.L. Rev. 689 (1930). These authorities are used to support its argument that the statute should be upheld. The dissent fails to mention, however, that the commentators cited by the dissent fully support our position that persons vicariously liable for liquor law violations cannot be criminally punished. Though it is true that the Model Penal Code makes provisions for vicarious liability on criminal cases, the commentary explicitly recommends that such liability only be imposed “in instances in which the stigma and the sanctions are not assimilated to those that are appropriate for crime.” Model Penal Code § 2.06(2)(b) comment 4 (1985). In a related section dealing with appropriate treatment of all vicarious or strict liability crimes, the drafters of the code were quite explicit in their beliefs on the subject:

The liabilities involved are indefensible, unless reduced to terms that insulate conviction from the type of moral condemnation that is and ought to be implicit when a sentence of probation or imprisonment may be imposed. It has been argued, and the argument undoubtedly will be repeated, that strict liability is necessary for enforcement in a number of the areas where it obtains. But if practical enforcement precludes litigation of the culpability of alleged deviation from legal requirements, the enforcers cannot rightly demand the use of penal sanctions for the purpose. Crime does and should mean condemnation and no *348court should have to pass that judgment unless it can declare that the defendant’s act was culpable. This is too fundamental to be compromised. The law goes far enough if it permits the imposition of a monetary penalty in cases where strict liability has been imposed.

Model Penal Code § 2.05, comment 1 (1985).

The dissent’s citation to an article by Sayre, Criminal Responsibility for the Acts of Another, 43 Harv.L.Rev. 689 (1930), is also inapposite. After finding numerous opinions on both sides of the question of whether to impose vicarious criminal liability, Professor Sayre states: “The liquor cases embody numerous diverging and conflicting views, and cannot be reconciled.” Id. at 715-16. Professor Sayre noted:

The danger is that criminal courts may forget the fundamental distinctions between criminal and civil liability for another’s acts, and begin to use as precedents for true-crime cases those liquor cases which virtually adopt the doctrine of respondeat superior.

Id. at 716. Professor Sayre went on to summarize the appropriate legal principle in these terms:

As the decisions indicate, a sharp line must be drawn between true crimes involving serious punishments and petty misdemeanors involving only light monetary fines. Where the offense is in the nature of a true crime, that is, where it involves moral delinquency or is punishable by imprisonment or a serious penalty, it seems clear that the doctrine of re-spondeat superior must be repudiated as a foundation for criminal liability.

Id. at 717.

Finally, far from endorsing criminal sanctions for violation of vicarious liability statutes, commentators LaFave and Scott believe that such sanctions are a mistake.

To the extent that vicarious liability can be justified in the criminal law, it should not be utilized to bring about the type of moral condemnation which is implicit when a sentence of imprisonment is imposed. On the other hand, imposition of a fine is consistent with the rationale behind vicarious criminal liability. Vicarious liability is imposed because of the nature and inherent danger of certain business activities and the difficulties of establishing actual fault in the operation of such businesses. A fine, unlike imprisonment, is less personal and is more properly viewed as a penalty on the business enterprise.

* * * * * *

Yet, it must be recognized that the imposition of criminal liability for faultless conduct is contrary to the basic Anglo-American premise of criminal justice that crime requires personal fault on the part of the accused. Perhaps the answer should be the same as the answer proposed in the case of strict-liability crimes: it is proper for the legislature to single out some special areas of human activity and impose vicarious liability on employers who are without personal fault, but the matter should not be called a “crime” and the punishment should not include more than a fine or forfeiture or other civil penalty; that is, it should not include imprisonment. As the law now stands, however, in almost all jurisdictions imprisonment and the word “criminal” may be visited upon perfectly innocent employers for the sins of their employees.

LaFave & Scott, Handbook on Criminal Law § 32 at 227-28 (1972).

Moreover, this court, in State v. Young, 294 N.W.2d 728 (Minn.1980), was dealing only with the imposition of a fine, not imprisonment. We suggested in that case that imprisonment might dictate a different result.

The dissent argues that vicarious liability is necessary as a deterrent so that an owner will impress upon employees that they should not sell to minors. However, it does not distinguish between an employer who vigorously lectures his employees and one who does not. According to the dissent, each would be equally guilty. We believe *349it is a deterrent enough that the employee who sells to the minor can be charged under the statute and that the business is subject to fines or suspension or revocation of license.

In this last quarter of the twentieth century, there is doubt whether the United States Supreme Court would uphold a conviction under the provisions of the United States Constitution. Even if it were to do so, the statute we hold violates Minn.Const. art. I, § 7, which states:

Due process; prosecutions; double jeopardy, self-incrimination; bail; habeas corpus. No person shall be held to answer for a criminal offense without due process of law, and no person shall be put twice in jeopardy of punishment for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law.

We specifically and exclusively decide the question under the provisions of the Minnesota Constitution herein cited. We find that, in Minnesota, no one can be convicted of a crime punishable by imprisonment for an act he did not commit, did not have knowledge of, or give expressed or implied consent to the commission thereof.

The certified question is thus answered in the affirmative that we hold section 340.-941 unconstitutional under the provisions of the Minnesota Constitution cited.

KELLEY, Justice

(dissenting):

I respectfully dissent. The strong public interest in prohibiting the sale of liquor to minors justifies the imposition of vicarious liability on the bar owner — employer for illegal sales to minors made by an employee. I respectfully suggest that in ruling Minn.Stat. § 340.941 (1984) unconstitutional, the majority has failed to give adequate weight to the clearly expressed, long-standing public policy of this state as reflected in Section 340.941. Imposition of vicarious liability and criminal punishment for sale of intoxicating liquor to minors has been the law in this state since 1905. See Minn.Rev. Laws § 1565 (1905).

In explaining the meaning and the purpose of a nearly identical predecessor of this statute, the court in 1913 stated:

This language plainly means that the act of the barkeeper is the act of the proprietor, that the proprietor must pay the penalty for sales made by his barkeeper in violation of the law, and that the delinquency of the barkeeper is the only evidence required to prove the guilt of the proprietor. The fact that the sale was made without the knowledge or assent of the proprietor and contrary to his general instructions furnishes no defense. The language of this statute is susceptible of no other construction. The offense is one of the class where proof of criminal intent is not essential. The statute makes the act an offense, and imposes a penalty for violation of the law, irrespective of knowledge or intent.

The statute is drastic in its terms, but the Legislature was doubtless of the opinion that drastic measures are required to accomplish the purpose of enforcement of laws regulating the sale of intoxicating liquors. The law was in existence when the offense was committed. It was a notice to every man choosing to follow this line of business that he must control his own business and the men he employs in it, and that he is bound under penalty of the law to employ only men who will not commit crime in his name.

State v. Lundgren, 124 Minn. 167-68, 144 N.W. 752, 754 (1913) (citations omitted).

Applying the rule of Lundgren, we upheld against constitutional challenge the sentence of conviction of a tavern owner for contributing to the delinquency of a minor. State v. Sobelman, 199 Minn. 232, 271 N.W. 484 (1937). The defendant was convicted, even though the state did not allege he was personally present in the tavern or that the minor was there with his knowledge or express authority. 199 Minn. at 234, 271 N.W. at 485. The court in Sobelman reasoned:

The protection of the morals and general well-being of minors is obviously what the statute aims at. If one operat*350ing a place where the vending of intoxicating liquor is the primary objective * * is to be exonerated from liability because he happens, whether by design or otherwise, to be absent at times when convenient to be away, then assuredly the very purpose of the law is frustrated and made for naught. The very spirit, intent, and purpose of the law, including as well the plain letter of it, repel the notion that any person so conducting his place of business can escape liability by absenting himself therefrom but leaving his servants and agents in charge to do as they please to his financial advantage, but at their own risk if caught in the game of violation.

199 Minn. at 234-35, 271 N.W. at 485.

In State v. Holm, 201 Minn. 53, 275 N.W. 401 (1937), this court upheld the conviction of a liquor store owner for selling intoxicating liquor to a minor. Construing a statutory provision prohibiting the sale of intoxicating liquor to any person under the age of 21, the court wrote: “The primary purpose in mind was to keep intoxicating liquor away from minors. The sound social and moral reasons behind this purpose are so evident that no discussion here is necessary.” 201 Minn. at 55, 275 N.W. at 402. In Holm, the employee, the actual seller of the liquor to the minor, had not been sufficiently identified to sustain a conviction. 201 Minn. at 55-56, 275 N.W. at 402. The liquor store owner claimed it was necessary to prove intent. We rejected this argument, ruling the defendant was responsible for sales made on his premises by his employees with or without his knowledge and consent. Id. More recently, this court reiterated the Lundgren rationale in upholding a conviction under Minn.Stat. § 340.-941. State v. Young, 294 N.W.2d 728 (Minn.1980).

The Lundgren reasoning seems even more compelling today now that the state has raised the drinking age to 21 from 19. In so doing, the legislature recognized the societal dangers of the consumption of alcoholic beverages by younger people, even though they are adults for other legal purposes. Act of March 17, 1986, ch. 330 § 6, 1986 Minn.Laws Vol. 2, p. 30, 34-36 (West Legis.Serv.1986), amending Minn.Stat. § 340A.503 (1985 Supp.). In the same chapter, the legislature enacted a law requiring every application for a driver’s license to include information on the effect of alcohol on driving ability and the levels of alcohol-related fatalities and accidents. Id. at § 1, p. 30-31. The state legislature has had a long-standing and continuing concern about problems associated with minors who consume alcoholic beverages. The defendant cannot claim a due process violation for lack of notice of a law on the books for more than eight decades.

Furthermore, imposition of vicarious liability and the threat of a short jail, not prison, sentence is reasonably related to the legislative purpose: enforcement of laws prohibiting liquor sales to minors. Without the deterrent of possible personal criminal responsibility and a sentence, the legislature could have rationally concluded that liquor establishment owners will be less likely to impress upon employees the need to require identification of age before serving liquor. Limiting punishment to a fine allows bar owners to view their liability for violations as nothing more than an expense of doing business. The gravity of the problems associated with minors who consume alcoholic beverages justifies the importance by the legislature of harsher punishment on those who help contribute to those problems. The state has the right to impose limited criminal vicarious liability on bar proprietors as a reasonable exchange for the state-granted privilege of a liquor license.

The majority today appears eager to destroy that 80 years of legislative policy and court interpretation in order to reach out and strike down Minn.Stat. § 340.941 on constitutional grounds. It does so even though in the present case the issue is not justiciable. Guminga has only been charged with a misdemeanor violation under Minn.Stat. § 340.941: he has neither been tried nor sentenced. No jail sentence has been imposed. See, e.g. State v. *351 Colsch, 284 N.W.2d 839 at 841-42 (Minn.1979); State v. Young, 294 N.W.2d 728, 730 (Minn.1980). Under these circumstances there simply exists no merit to defendant’s general claim that he has been deprived of due process. See State v. Young; State v. Lundgren, 124 Minn. 162, 144 N.W. 752 (1913). The logic of the majority’s attempt to distinguish this case from State v. Lundgren and State v. Young on the gounds the sentencing guidelines were not then in force escapes me. Ever since the establishment of statehood, long before the establishment of the sentencing guidelines, a judge sentencing, for example, Mr. Lundgren or Mr. Young could have, and usually did, take into consideration prior convictions of this nature in enhancing subsequent sentences. The alleged distinction, in my opinion, is one without a difference. For all of the foregoing reasons, I would uphold the constitutionality of the statute.

But even if one can get over the justicia-bility hurdle, I am likewise deeply troubled that the majority opinion by declaring Minn.Stat. § 340.941 unconstitutional on the grounds that it violates substantive due process seems to revert to pre-1937 Lochner era. In Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), the United States Supreme Court declared unconstitutional a statute limiting working hours as an improper exercise of the police power, in part, because the majority of the court in that case did not agree with the soundness of views which promulgated and upheld the law. The majority of the court in Lochner substituted its views that the statute substantially deprived employers of certain rights, doing so under the banner of substantive due process. That court, the Supreme Court of the United States, has wisely retreated from substantive due process as a constitutional theory for striking down economic and social legislation for more than 50 years. See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963) (Court has long discarded Lochner doctrine and returned to original constitutional proposition that courts do not substitute their social and economic beliefs for judgment of acts of legislative bodies). See also Paulsen, M. The Persistence of Substantive Due Process in the States, 34 Minn.L.Rev. 91 (1950) where the author criticized state supreme courts for using substantive due process to strike down economic and social legislation after the United States Supreme Court had abandoned this approach. Yet that is precisely what the majority announces it is doing — striking down this legislation directed toward a regulation of a social problem on a substantive due process ground. See also McKnight, Minnesota Rational Relation Test: The Lochner Monster in the 10,000 Lakes, 10 Wm. Mitchell L. Rev. 709 (1984) (a critique of the Minnesota Supreme Court for resurrecting substantive due process and misapplying the equal protection rationality test).

Apparently the majority recognizes that the United States Supreme Court has used restraint in substituting the views of its majority for those of legislative bodies, for it now seeks to avoid that half century of precedent by suddenly holding that “due process of law,” as used in Minnesota Constitution, art. 1, § 7, which is identical to “due process of law” as used in amend. XIV, § 1 of the United States Constitution, permits a regression to substantive due process analysis authorizing this court to strike down legislative enactments the majority does not like. Indeed, the opinion goes even further than that because it purports to strike down any and all Minnesota criminal statutes that may impose “imprisonment” for one vicariously when one over whom one had control performed a criminal act.1

The majority’s holding today not only fails to give deference to decades of legisla*352tive policy, but it is likewise at odds with rulings of the majority of the courts of our sister jurisdictions. It can be stated as a general rule, that statutes imposing vicarious criminal liability upon the “innocent” employer for the illegal conduct of the employee have been generally upheld as constitutional. See Annot., 139 A.L.R. 306 (1942); Annot., 89 A.L.R.3d 1256 (1979). Although somewhat critical of the position of the great majority of the courts, Professor F.B. Sayre writing in Harvard Law Review acknowledged that in this field traditionally vicarious liability has not been considered to infringe on due process rights. Sayre, Criminal Responsibility for the Acts of Another, 43 Harv.L.Rev. 689 (1930). Likewise, although not necessarily embracing the majority position, and indeed critical of the imposition of vicarious liability in certain areas, LaFave and Scott have summarized the case law noting:

If the authorized punishment is light — a fine or perhaps a short imprisonment —the statute is likely to be construed to impose vicarious liability on a faultless employer. But if the permitted punishment is severe — a felony or serious misdemeanor — the statute is not apt to be so construed in the absence of an express provision for vicarious responsibility.

Handbook on Criminal Law at § 32 (emphasis supplied). The Minnesota statute in question here has an express provision for vicarious liability and permits light punishment. Minn.Stat. § 609.03. Section 340.-941 should be upheld as constitutional.

As lucidly stated in Hershom v. People, 108 Colo. 43, 113 P.2d 680 (1941), the Colorado Supreme Court in upholding the conviction of the president and general manager of a corporation which operated a nightclub for selling liquor to an intoxicated minor and affirming the imposition of a sentence of 60 days in the county jail said, “To make unlawful the sale of intoxicants to minors and inebriates, regardless of intent, is a reasonable legislative regulation of the liquor traffic, so long as the proscribed act amounts only to a misdemean- or.” 108 Colo, at 56, 113 P.2d at 686.

Likewise, the Model Penal Code also allows for vicarious criminal liability. “A person is legally accountable for the conduct of another when * * * he is made accountable for the conduct of such other person by the Code or by the law defining the offense * * *.” Model Penal Code § 2.06, subd. 2(b). The comment to the Model Penal Code makes reference to statutes such as section 340.941.

There is an additional situation contemplated in the formulation of Subsection (2)(b), mainly involving vicarious liability for acts of agents or employees in the course of their employment. Where the liability is not based upon explicit legislation, the decision to impose it by interpretation usually takes the ground that the legislature has imposed on special persons (e.g., an owner or a licensee) an absolute duty (e.g., that liquor not be sold to a minor), the performance of which is not delegable to an agent; or that strict liability has been imposed for the offense, making it no more unjust to hold the innocent master than his innocent servant acting in the course of his employment.

Id. at comment 4.

While the Twenty-first Amendment to the U.S. Constitution does not empower the state to invade a citizen’s due process rights, it “has bestowed upon the states broad regulatory powers over liquor importation, recognized as something more than normal state authority over health, welfare, and morals.” Federal Distillers, Inc. v. State, 304 Minn. 28, 40, 229 N.W.2d 144, 154 (1975), appeal dismissed 423 U.S. 908, 96 S.Ct. 209, 210, 46 L.Ed.2d 137 (1975). I would hold Minn.Stat. § 340.941 to be a proper exercise of state regulatory power that does not invade the defendant's due process rights. The statute does not impose strict liability but only vicarious liability subject to defenses. At trial, the defendant may establish the defense that he or his employee adequately attempted to *353investigate the age of the purchaser. Minn.Stat. § 340.942 (1984).2

Every legislative enactment comes to the courts with a presumption in favor of its constitutionality. Federal Distillers, Inc. v. State, 304 Minn. at 39, 229 N.W.2d at 154. The burden of proof is on the challenging parties to show beyond a reasonable doubt that the act violates some particular constitutional provision. Id. I do not believe the defendant has met his burden in challenging the constitutionality of Minn. Stat. § 340.941 of demonstrating that the act is “arbitrary and unreasonable.” State ex. rel. Larson v. City of Minneapolis, 190 Minn. 138, 139-40, 251 N.W. 121 (1933). He has failed to establish a justiciable issue indicating violation of any due process rights. But even if he had established a justiciable issue, I suggest the court errs in the holding that as a matter of substantive due process under Minnesota’s Constitution that Minn.Stat. § 340.941 violates the due process clause. I would follow our own precedents and remain consistent with the great majority of states in recognizing the legislatively stated public policy of strict enforcement of liquor laws prohibiting sales to minors by imposing vicarious criminal liability on the owner-employer for such illegal sales.

SCOTT, Justice

(dissenting).

I join in the dissent of Justice Kelley.