State v. Day, No. 86-322

Docket NºNo. 86-322
Citation150 Vt. 119, 549 A.2d 1061
Case DateJune 17, 1988
CourtUnited States State Supreme Court of Vermont

Page 1061

549 A.2d 1061
150 Vt. 119
STATE of Vermont
v.
Darrell DAY.
No. 86-322.
Supreme Court of Vermont.
June 17, 1988.

Page 1062

[150 Vt. 120] Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt and Elizabeth J. Grant, Asst. Attys. Gen., Montpelier, for plaintiff-appellee.

Walter M. Morris, Defender General, and Henry Hinton, Appellate Defender, Montpelier, for defendant-appellant.

Before [150 Vt. 119] ALLEN, C.J., and PECK, GIBSON, DOOLEY and MAHADY, JJ.

[150 Vt. 120] GIBSON, Justice.

Defendant appeals his convictions, after a jury trial, of operating a motor vehicle without the owner's consent, 23 V.S.A. § 1094, attempting to elude a police officer, 23 V.S.A. § 1133, and driving while under the influence of intoxicating liquor (DUI), 23 V.S.A. § 1201(a)(2). We affirm.

I.

Viewed in the light most favorable to the State, State v. Jaramillo, 140 Vt. 206, 208, 436 A.2d 757, 759 (1981), the record reveals the following relevant facts. Defendant was apprehended fleeing from the scene of a car crash, following a high speed chase through downtown Bennington, Vermont. During the chase, defendant failed to heed the lights or siren of a pursuing police car. He also failed to heed the signal to stop by a police officer on foot. Instead of stopping, defendant accelerated and narrowly missed striking the officer. During the chase, defendant operated his vehicle in a highly erratic manner, and after his apprehension, additional evidence strongly indicated that defendant had been under the influence of intoxicating liquor at the time of operation. Upon an examination of the vehicle, the police found a screwdriver inserted

Page 1063

in a portion of the vehicle's ignition, with another section [150 Vt. 121] of the ignition on the floor of the vehicle. The police later identified the vehicle as belonging to a person other than defendant.

At trial, the State presented evidence that defendant was not the owner of the motor vehicle, and that the true owner of the vehicle had not given permission to anyone to operate his car. At the close of the State's evidence, defense counsel moved for an acquittal on the operating-without-the-owner's-consent charge on the theory that the State had not provided sufficient evidence as to the intent of defendant to operate the vehicle without the owner's permission. The trial court denied the motion. At the close of all the evidence, the court refused to charge the jury that it was required to find that defendant knew he lacked permission to operate the vehicle, and defense counsel made a timely objection to the charge as given by the court. Counsel did not object to the instructions regarding the attempt to elude a police officer or the DUI instruction. The jury convicted defendant on all counts.

Defendant raises four issues: (1) that the trial court erred in refusing to instruct the jury that an element of the crime of operating a motor vehicle without the owner's consent is that the operator knew, or reasonably should have known, that he did not have permission to operate the vehicle; (2) that the trial court erred in failing to instruct the jury that it must find that defendant was an operator, as defined by 23 V.S.A. § 4(25), in order to convict defendant of attempting to elude a police officer; (3) that the trial court erred by failing to instruct the jury on diminished capacity in connection with the charge of attempting to elude a police officer; and (4) that the trial court erred by providing the jury with contradictory instructions as to the elements of the DUI charge.

II.

Defendant argues that the crime of operating a motor vehicle without the owner's consent should include the element of intent to operate the vehicle without the owner's consent. The statute reads in pertinent part that: "A person who, without the consent of the owner, takes, uses, operates or removes ... a motor vehicle, and operates or drives or causes the same to be operated or driven for his own profit, pleasure, use or purpose" shall be in violation of this statute. 23 V.S.A. § 1094. The statute contains no reference to intent and no requirement of proof of intent; however,[150 Vt. 122] we find that the phrase "without the consent of the owner" implies a requirement of general intent on behalf of a defendant to operate the motor vehicle without the owner's consent.

We have recently examined this area of our jurisprudence in State v. Audette, 149 Vt. 218, 543 A.2d 1315 (1988). "Although an element of mens rea is not explicitly required, this [kidnapping] 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...." Id. at 221, 543 A.2d at 1317. See generally Stern, Revising Vermont's Criminal Code, 12 Vt.L.Rev. 307, 312-17 (1987) (lack of comprehensive approach to mens rea requirements in Vermont criminal code).

It is well established that at least with crimes having their origin in...

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15 practice notes
  • State v. Roy, No. 87-536
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 13, 1989
    ...at 428, 519 A.2d at 1153; State v. Dusablon, 142 Vt. 95, 98, 453 A.2d 79, 81 (1982). In some ways, this case is similar to State v. Day, 150 Vt. 119, 549 A.2d 1061 (1988). In Day, this Court held that general intent to operate a vehicle without the owner's consent is an element of the crime......
  • State v. Percy, No. 88-438
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 5, 1990
    ...v. Bishop, 128 Vt. 221, 230, 260 A.2d 393, 399 (1969) (quoting Fassett v. Town of Roxbury, 55 Vt. 552, 556 (1883)); see State v. Day, 150 Vt. 119, 123, 549 A.2d 1061, 1064 (1988). In light of the entire instruction in the case before us, we find no error in the charge. See State v. Snide, 1......
  • State v. Bolaski, No. 12–036.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • April 25, 2014
    ...theories, and claims' presented by the evidence.” State v. Swift, 2004 VT 8A, ¶ 12, 176 Vt. 299, 844 A.2d 802 (quoting State v. Day, 150 Vt. 119, 123, 549 A.2d 1061, 1064 (1988)). We review jury instructions as a whole to ensure that they convey the spirit of the law and there is no fair gr......
  • State v. Goyette, No. 89-440
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 31, 1991
    ...likely" language was ill-advised, but we conclude that, taken in its entirety, the charge satisfactorily stated the law. See State v. Day, 150 Vt. 119, 123-24, 549 A.2d 1061, 1064 (1988) (although charge was not as clear as might be desired, it breathed true spirit and doctrine of law); Sta......
  • Request a trial to view additional results
15 cases
  • State v. Roy, No. 87-536
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 13, 1989
    ...at 428, 519 A.2d at 1153; State v. Dusablon, 142 Vt. 95, 98, 453 A.2d 79, 81 (1982). In some ways, this case is similar to State v. Day, 150 Vt. 119, 549 A.2d 1061 (1988). In Day, this Court held that general intent to operate a vehicle without the owner's consent is an element of the crime......
  • State v. Percy, No. 88-438
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 5, 1990
    ...v. Bishop, 128 Vt. 221, 230, 260 A.2d 393, 399 (1969) (quoting Fassett v. Town of Roxbury, 55 Vt. 552, 556 (1883)); see State v. Day, 150 Vt. 119, 123, 549 A.2d 1061, 1064 (1988). In light of the entire instruction in the case before us, we find no error in the charge. See State v. Snide, 1......
  • State v. Bolaski, No. 12–036.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • April 25, 2014
    ...theories, and claims' presented by the evidence.” State v. Swift, 2004 VT 8A, ¶ 12, 176 Vt. 299, 844 A.2d 802 (quoting State v. Day, 150 Vt. 119, 123, 549 A.2d 1061, 1064 (1988)). We review jury instructions as a whole to ensure that they convey the spirit of the law and there is no fair gr......
  • State v. Goyette, No. 89-440
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 31, 1991
    ...likely" language was ill-advised, but we conclude that, taken in its entirety, the charge satisfactorily stated the law. See State v. Day, 150 Vt. 119, 123-24, 549 A.2d 1061, 1064 (1988) (although charge was not as clear as might be desired, it breathed true spirit and doctrine of law); Sta......
  • Request a trial to view additional results

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