Commonwealth v. Davis

• Decision Date: 22 January 2019
• Docket Number: Case No. FE-2017-1514
• Parties: Re: Commonwealth of Virginia v. Richard G. Davis
• Court: Circuit Court of Virginia

Re: Commonwealth of Virginia v. Richard G. Davis

Case No. FE-2017-1514

NINETEENTH JUDICIAL CIRCUIT OF VIRGINIA COUNTY OF FAIRFAX CITY OF FAIRFAX

January 22, 2019

OPINION LETTER

BRUCE D. WHITE, CHIEF JUDGE RANDY I. BELLOWS ROBERT J. SMITH JAN L. BRODIE BRETT A. KASSABIAN MICHAEL F. DEVINE JOHN M. TRAN GRACE BURKE CARROLL DANIEL E. ORTIZ PENNEY S. AZCARATE STEPHEN C. SHANNON THOMAS P. MANN RICHARD E. GARDINER DAVID BERNHARD DAVID A. OBLON JUDGES

THOMAS A. FORTKORT JACK B. STEVENS J. HOWE BROWN F. BRUCE BACH M. LANGHORNE KEITH ARTHUR B. VIEREGG KATHLEEN H. MACKAY ROBERT W. WOOLDRIDGE, JR. MICHAEL P. McWEENY GAYLORD L. FINCH, JR. STANLEY P. KLEIN LESLIE M. ALDEN MARCUS D. WILLIAMS JONATHAN C. THACHER CHARLES J. MAXFIELD DENNIS J. SMITH LORRAINE NORDLUND DAVID S. SCHELL RETIRED JUDGES

Marcus N. Greene, Esquire

Assistant Commonwealth's Attorney

OFFICE OF THE COMMONWEALTH'S ATTORNEY

4110 Chain Bridge Road

Fairfax, VA 22030

Counsel for the Commonwealth

Sebastian M. Norton, Esquire

THE NORTON FIRM, LLC

108 N. Alfred Street, Suite 200

Alexandria, VA 22314

smn@nortonfirmllc.com

Counsel for the Defendant

Dear Counsel:

The issue before the Court is whether the crime of "Aiding in Unlawfully Obtaining Documents from the Department of Motor Vehicles ("DMV") When Not Entitled Thereto" under Virginia Code § 46.2-105.2(B) contains a mens rea element. The Court holds the Code section does and therefore concludes it improperly instructed the jury to the contrary. For this reason, the Court grants Richard Davis' Motion to Set Aside Verdict. The Commonwealth may schedule this matter for a re-trial if so inclined.

I. OVERVIEW: CARS PARKED LONG TERM MAY BE CLAIMED BY ANYONE?

The Commonwealth indicted Davis on December 18, 2017 for unlawfully obtaining documents from the DMV when not entitled thereto under Virginia Code § 46.2-105.2(A).¹ Later, the indictment was amended to aiding another person unlawfully obtain documents from the DMV under Virginia Code § 46.2-105.2(B). Davis pled not guilty and a jury trial ensued from September 17-18, 2018. The jury found Davis guilty as charged and fixed a sentence of nine months in jail and a $1,700.00 fine. The Court sentenced him to the same by Order dated December 17, 2018.

At trial, the Commonwealth alleged Davis unlawfully aided Roger Taylor obtain title to a vehicle owned by Oswaldo Martinez-Rodriguez via an obscure DMV procedure whereupon one reports an apparently abandoned vehicle and, if the owner fails to take certain responsive actions, the reporter may take title to the vehicle. See VA. CODE § 46.2-1202.² Davis did not testify on his own behalf, but his counsel's chief argument in defense was Davis thought he was helping Taylor lawfully claim an abandoned vehicle without any fraudulent intent.

Both the Commonwealth and Davis offered proposed jury instructions. There are no model jury instructions for this crime and there is a dearth of case law on point. But cf. Wilson v. Commonwealth, No. 0550-11-2, 2012 WL 443944 (Va. Ct. App. Feb. 14, 2012). The Court rejected Davis' proposed instruction and, over Davis' objection, accepted the Commonwealth's, which read:

Richard Davis is charged with the crime of Obtaining Documents from the Department of Motor Vehicles when not entitled thereto. The Commonwealth must prove beyond a reasonable doubt each of the following elements of the crime:

(1) That Richard Davis aided any person to obtain a vehicle certificate of title; AND

(2) That the person had not satisfied all legal and procedural requirements for the issuance thereof, OR

(3) That the person was not otherwise legally entitled to the title.

The above includes obtaining any document issued by DMV through the use of counterfeit, forged, or altered documents.

If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the above elements of the offense as charged, then you shall find Richard Davis guilty of obtaining documents from the [D]epartment of [M]otor [V]ehicles when not entitled thereto[.]

If you find that the Commonwealth has failed to prove beyond a reasonable doubt any of the two elements of the offense (element 1 AND either element 2 or 3) then you shall find Richard Davis not guilty.

Davis' proposed instruction paralleled the Commonwealth's but added a fourth element: "That the defendant obtained such document with fraudulent intent."

When proposing instructions and in his Motion to Set Aside the Verdict, Davis argued Virginia Code § 46.2-105.2(B) contains an implicit mens rea of fraudulent intent and argued the Court was required to instruct the jury accordingly. He acknowledged, however, Subsection (B) is "completely silent as to a mens rea."³

The Commonwealth responded Virginia Code § 46.2-105.2(A) is a strict liability offense. The Commonwealth also points out Virginia Code § 46.2-105.2(C) does utilize a mens rea, drawing out a distinction between that subsection and Subsection (A). The Commonwealth argues this demonstrates the General Assembly intends there be no mens rea element implied into Virginia Code § 46.2-105.2(A).

II. ANALYSIS: AN IMPLIED MENS REA.

Davis moves to set aside the jury verdict under Rule 3A:15(b) of the Rules of the Supreme Court of Virginia, which provides:

If the jury returns a verdict of guilty, the court may, on motion of the accused made not later than 21 days after entry of a final order, set aside the verdict for error committed during the trial or if the evidence is insufficient as a matter of law to sustain a conviction.

Davis challenges an alleged "error committed during the trial," not that the "evidence is insufficient as a matter of law." The error alleged is the failure to properly instruct the jury as to the mens rea element of Virginia Code § 46.2-105.2(B).

While "[w]hether to give or deny jury instructions 'rest[s] in the sound discretion of the trial court,'" Hilton v. Commonwealth, 293 Va. 293, 302 (2017) (citations omitted), "[i]t is error to give an instruction that incorrectly states the law," Payne v. Commonwealth, 292 Va. 855, 869(2016) (citations omitted). "[A] correct statement of the law applicable to the case . . . (is one of the) essentials of a fair trial." Dowdy v. Commonwealth, 220 Va. 114, 116 (1979) (quoting Limbaugh v. Commonwealth, 149 Va. 383, 400 (1927)). Thus, "[a] trial court has a duty when instructing the jury to define each element of the relevant offense." Lawlor v. Commonwealth, 285 Va. 187, 229 (2013) (footnote omitted) (citing Dowdy, 220 Va. at 116); see also Dowdy, 220 Va. at 116 ("Unless those elements are defined by instructions available to the members of the jury during their deliberation, they cannot properly determine whether the Commonwealth has carried its burden."). Failure to instruct the jury as to each element of the crime charged is an abuse of discretion and constitutes a reversible error. Dowdy, 220 Va. at 116.

To determine whether the Court abused its discretion in the case at bar, the Court must discern whether Virginia Code § 46.2-105.2(B) contains a mens rea element. In relevant part, the Code section reads as follows:

A. It shall be unlawful for any person to obtain a Virginia driver's license, special identification card, vehicle registration, certificate of title, or other document issued by the Department if such person has not satisfied all legal and procedural requirements for the issuance thereof, or is otherwise not legally entitled thereto, including obtaining any document issued by the Department through the use of counterfeit, forged, or altered documents.

B. It shall be unlawful to aid any person to obtain any driver's license, special identification card, vehicle registration, certificate of title, or other document in violation of the provisions of subsection A.

C. It shall be unlawful to knowingly possess or use for any purpose any driver's license, special identification card, vehicle registration, certificate of title, or other document obtained in violation of the provisions of subsection A.

VA. CODE § 46.2-105.2.

"[T]he law is clear that the legislature may create strict liability offenses as it sees fit, and there is no constitutional requirement that an offense contain a mens rea or scienter element." Esteban v. Commonwealth, 266 Va. 605, 609 (2003) (citing Maye v. Commonwealth, 213 Va. 48, 49 (1972)). "Thus, courts construe statutes and regulations that make no mention of intent as dispensing with it and hold that the guilty act alone makes out the crime." Id. (citing Morissette v. United States, 342 U.S. 246, 256, 258 (1952); Makarov v. Commonwealth, 217 Va. 381, 385-86 (1976)).

Underlying Subsection (A) of Virginia Code § 46.2-105.2 is the clear intent of the General Assembly to criminalize the act of obtaining documents from the DMV to which the person is not legally entitled to (either inherently or due to a procedural flaw). It is equally clear Subsection (C) contains a mens rea element: "to knowingly possess." VA. CODE § 46.2-105.2(C) (emphasis added).

Davis argues Subsection (B) of Virginia Code § 46.2-105.2 has an implied mens rea element of fraudulent intent. To the extent Subsection (B) has an implied mens rea, the Court finds Davis is correct. Subsection (B) makes it unlawful to "aid" another person in obtaining documents under Subsection (A). Resolution of the issue before the Court hinges on the mens rea inferable, if any, to one who "aids" another in an unlawful act. "[T]he mens rea requirement under a criminal statute is a question of law, to be determined by the court." Staples v. United States, 511 U.S. 600, 613 n.6 (1994).

As a general rule, "a common-law term of art should be given its established common-law meaning." Johnson v. United States, 559 U.S. 133, 139 (2010) (citing United States v. Turley, 352 U.S. 407, 411 (1957)). Virginia courts adhere to this same rule: "[w]hen a statute employs a common-law term of art, the General Assembly 'is presumed to have known and to have had the common law in mind in the enactment of [the] stat...