State v. Audette

• Decision Date: 15 January 1988
• Docket Number: No. 86-064,86-064
• Citation: 543 A.2d 1315,149 Vt. 218
• Parties: STATE of Vermont v. Harrison L. AUDETTE.
• Court: Vermont Supreme Court

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 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 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 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. LaFave & A. Scott, Substantive Criminal Law § 3.5(a) (1986). Specific intent, in comparison, requires proof that defendant intended "to accomplish the precise act which the law prohibits." Black's Law Dictionary 727 (5th ed. 1979). In both instances circumstantial evidence may be used to establish the requisite intent. See State v. Kerr, 143 Vt. 597, 603, 470 A.2d 670, 673 (1983) (citing State v. Colby, 140 Vt. 638, 641-42, 443 A.2d 456, 457 (1982)).

This Court has recognized the general rule that "[u]nless expressly provided otherwise by the legislature, ... a crime is composed of an act and an intent, which concur at a point in time." State v. Hanson, 141 Vt. 228, 232, 446 A.2d 372, 374 (1982) (citation omitted). In State v. Doucette, 143 Vt. 573, 580, 470 A.2d 676, 681 (1983), we wrote that "one of the criminal law's most basic principles [is that] a person is not criminally liable for causing a bad result if he or she did not have some culpable mental state with respect to that result." The United States Supreme Court has agreed with this proposition, noting that guilty intent may be implied where not expressly stated in a statute, see Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 249-50, 96 L.Ed. 288 (1952), and at least with crimes having their origin in the common law, one must assume some mens rea is required. ¹ See also People v Powell, 716 P.2d 1096, 1101 (Colo.1986) (citing Morissette, 342 U.S. 246, 72 S.Ct. 240, the Colorado court held that the crime of kidnapping includes within it an element of criminal intent).

Although an element of mens rea is not explicitly required, this statute also does not affirmatively provide for liability without fault. When the Legislature is silent as to the mens rea required for a particular offense, this Court will not simply assume that the statute creates a strict liability offense, but will try to determine the intent of the Legislature. See Hanson, 141 Vt. at 232, 446 A.2d at 374 (although the larceny statute is silent as to the mens rea required, this Court found larceny to require an intent to permanently deprive the owner of his property); State v. Sidway, 139 Vt. 480, 484, 431 A.2d 1237, 1239 (1981) (finding an implicit scienter requirement in the crime of leaving the scene of an accident). But see Kerr, 143 Vt. at 605, 470 A.2d at 674 (this Court refused to add an element of scienter to the plain language of a statute prohibiting carrying a weapon while committing a felony). ²

To decide whether the Legislature meant to impose liability without fault, or, in the alternative, meant to require fault, we consider a number of factors, the most important of which is the severity of the punishment provided for the crime. See 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.8(a) (1986). "[T]he greater the possible punishment, the more likely some fault is required; and, conversely, the lighter the possible punishment, the more likely the legislature meant to impose liability without fault." Id. See also State v. Strong, 294 N.W.2d 319, 320 (Minn.1980) ("Most crimes are not strict liability offenses and most commentators have argued that the legislature should never use strict liability for crimes carrying a sentence of imprisonment...."); State v. Collova, 79 Wis.2d 473, 485, 255 N.W.2d 581, 587 (1977) (where the statute is not explicit one of the principal indexes courts consider on the question whether some element of knowledge is required is the severity of the penalty involved).

If we were to interpret 13 V.S.A. § 2401 as creating a strict liability offense of kidnapping, a person could be subject to a penalty of up to 25 years in prison even though defendant was reasonable in his belief that the "victim" was consenting, and even if he did not intend or know that his actions would make the "victim" feel forcibly confined. Because the Legislature...