State v. Audette, No. 86-064

Docket NºNo. 86-064
Citation543 A.2d 1315, 149 Vt. 218
Case DateJanuary 15, 1988

Page 1315

543 A.2d 1315
149 Vt. 218
STATE of Vermont
v.
Harrison L. AUDETTE.
No. 86-064.
Supreme Court of Vermont.
Jan. 15, 1988.

Robert Andres, Chittenden County Deputy State's Atty., Burlington, for plaintiff-appellee.

David W. Curtis, Defender General, and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.

Before ALLEN, C.J., PECK and DOOLEY, JJ., BARNEY, C.J. (Ret.), and KEYSER, J. (Ret.), Specially Assigned.

PECK, Justice.

Defendant appeals his conviction of kidnapping following a jury trial in Chittenden District Court. The principal issue [149 Vt. 219] raised by defendant is whether the trial court erred by failing to include in its charge to the jury that the crime of kidnapping, 13 V.S.A. § 2401, includes an element of felonious intent. We reverse and remand.

Defendant was charged and convicted of kidnapping his wife, who was residing at a battered women's shelter in Burlington, Vermont. At the close of the trial, in a written request to instruct, defendant asked the court to charge the jury that the crime of kidnapping includes an element of felonious intent. At the charge conference the judge ruled that the statute requires no specific intent on the part of defendant, and that general intent may be deemed from the fact of forcible confinement of the victim, against her will. The trial court instructed the jury that the State must simply prove that defendant confined the victim, that the confinement was unlawful, forcible and nonconsensual, that defendant had no lawful authority or justification for such confinement, and that these acts took place in the State of Vermont.

13 V.S.A. § 2401 reads in pertinent part:

A person who, without legal authority, forcibly or secretly confines or imprisons another person within this state against his will ... or forcibly seizes or confines or inveigles or kidnaps another person with intent to cause him to be secretly confined or imprisoned in this state against his will ... shall be [guilty of kidnapping].

We note that the statute is clear that no specific intent is required for forcibly or secretly confining a person against her

Page 1316

will; however, we find that the words "forcibly" and "secretly" imply a requirement of general intent on the part of defendant. We do not agree with the trial court that general intent can be deemed if the State proves the elements as charged to the jury in this case. Rather, we hold that, for the crime of kidnapping to be properly charged to the jury, the instructions must include a separate element of general intent.

There does not appear to be a kidnapping statute exactly like Vermont's, although there are a number with similar phraseology. Wisconsin's former kidnapping statute, which carried a maximum penalty of only two years imprisonment, is similar in its phrasing of the intent element of the crime. See Smith v. State, 63 Wis. 453, 458, 23 N.W. 879, 881 (1885). Like our statute, the Wisconsin law provided for several alternatives of proscribed acts, all of [149 Vt. 220] which independently constituted the charge of kidnapping, State v. McLaren, 135 Vt. 291, 294, 376 A.2d 34, 36 (1977); State v. Barr, 126 Vt. 112, 119, 223 A.2d 462, 468 (1966), and contained a clause requiring intent to cause the victim to be "secretly confined or imprisoned ... against his will." Smith, 63 Wis. at 455, 23 N.W. at 880. Although the clause requiring intent did not explicitly modify the first part of the statute, the Wisconsin court held that the intent clause modified the entire statute and not only the clause which immediately preceded it. Id. at 462, 23 N.W. at 883. The court reasoned that "if the first clause of the [statute] defines a distinct and complete offense, unqualified by the intent thereafter mentioned," then the statute would allow kidnapping prosecutions for nothing more than unauthorized forcible confinements, an offense the common law punished only as a false imprisonment. Id. at 458, 23 N.W. at 881.

We decline to follow Wisconsin's construction of the statute. It is apparent to us that the intent clause of the statute is meant to modify only the language of the statute that immediately preceded it. However, although Vermont's Legislature failed to expressly require an element of criminal intent in the first clause of the kidnapping statute, the use of the words "forcibly" and "secretly" indicate that general intent is a necessary ingredient of the crime of kidnapping.

General intent is defined as "the intent to do that which the law prohibits. It is not necessary for the prosecution to prove that the defendant intended the precise harm or the precise result which eventuated." Black's Law Dictionary 727 (5th ed. 1979). It is sufficient to prove either that the defendant consciously desires the result, or that "he knows [or should have known] that that result is practically certain to follow from his conduct, whatever his desire may be as to that result." 1 W....

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17 practice notes
  • State v. Roy, No. 87-536
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 13 Enero 1989
    ...650 (1974). We have found scienter elements in other statutes where none was expressly written into the statute. See State v. Audette, 149 Vt. 218, 222, 543 A.2d 1315, 1316 (1988) (kidnapping); State v. Hanson, 141 Vt. 228, 232, 446 A.2d 372, 374 (1982) (larceny); State v. Peters, 141 Vt. a......
  • Frey v. State, No. 88924
    • United States
    • United States State Supreme Court of Florida
    • 5 Marzo 1998
    ...Court has adopted a similar distinction, defining general intent as "the intent to do that which the law prohibits." State v. Audette, 149 Vt. 218, 543 A.2d 1315, 1316 (1988) (quoting Black's Law Dictionary 729 (5th ed.1979)). Accordingly, it is "not necessary for the prosecution to prove t......
  • State v. Dann, Nos. 96-178
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 8 Agosto 1997
    ...that § 3132(a) does not create a strict-liability offense, despite the absence of a mental element in the statute. See State v. Audette, 149 Vt. 218, 221, 543 A.2d 1315, 1317 (1988) (when Legislature is silent as to mens rea required for particular offense, Court will not simply assume that......
  • State v. Stanislaw, No. 88-131
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 26 Enero 1990
    ...try to determine the intent of the Legislature." State v. Francis, 151 Vt. 296, 307, 561 A.2d 392, 398 (1989) (quoting State v. Audette, 149 Vt. 218, 221, 543 A.2d 1315, 1317 To decide whether the Legislature intended to impose strict criminal liability, we turn first to the common law, for......
  • Request a trial to view additional results
17 cases
  • State v. Roy, No. 87-536
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 13 Enero 1989
    ...650 (1974). We have found scienter elements in other statutes where none was expressly written into the statute. See State v. Audette, 149 Vt. 218, 222, 543 A.2d 1315, 1316 (1988) (kidnapping); State v. Hanson, 141 Vt. 228, 232, 446 A.2d 372, 374 (1982) (larceny); State v. Peters, 141 Vt. a......
  • Frey v. State, No. 88924
    • United States
    • United States State Supreme Court of Florida
    • 5 Marzo 1998
    ...Court has adopted a similar distinction, defining general intent as "the intent to do that which the law prohibits." State v. Audette, 149 Vt. 218, 543 A.2d 1315, 1316 (1988) (quoting Black's Law Dictionary 729 (5th ed.1979)). Accordingly, it is "not necessary for the prosecution to prove t......
  • State v. Dann, Nos. 96-178
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 8 Agosto 1997
    ...that § 3132(a) does not create a strict-liability offense, despite the absence of a mental element in the statute. See State v. Audette, 149 Vt. 218, 221, 543 A.2d 1315, 1317 (1988) (when Legislature is silent as to mens rea required for particular offense, Court will not simply assume that......
  • State v. Stanislaw, No. 88-131
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 26 Enero 1990
    ...try to determine the intent of the Legislature." State v. Francis, 151 Vt. 296, 307, 561 A.2d 392, 398 (1989) (quoting State v. Audette, 149 Vt. 218, 221, 543 A.2d 1315, 1317 To decide whether the Legislature intended to impose strict criminal liability, we turn first to the common law, for......
  • Request a trial to view additional results

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