State v. Day, 86-322

Citation150 Vt. 119,549 A.2d 1061
Decision Date17 June 1988
Docket NumberNo. 86-322,86-322
PartiesSTATE of Vermont v. Darrell DAY.
CourtUnited States State Supreme Court of Vermont

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 ALLEN, C.J., and PECK, GIBSON, DOOLEY and MAHADY, JJ.

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 in a portion of the vehicle's ignition, with another section 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, 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 the common law, intent generally remains an indispensible element of a criminal offense. United States v. United States Gypsum Co., 438 U.S. 422, 437, 98 S.Ct. 2864, 2873, 57 L.Ed.2d 854 (1978); see also State v. Doucette, 143 Vt. 573, 580, 470 A.2d 676, 681 (1983) ("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."). We have previously held that the larceny statute, which derived from the common law crime of theft, although silent as to mens rea, required an intent permanently to deprive the owner of his property. State v. Hanson, 141 Vt. 228, 232, 446 A.2d 372, 374 (1982); see also Audette, 149 Vt. at 220, 543 A.2d at 1316 (general intent a "necessary ingredient of the crime of kidnapping"); State v. Graves 140 Vt. 202, 205, 436 A.2d 755, 757 (1981) (knowledge of falsity an implicit element of the crime of uttering a false prescription); State v. Sidway, 139 Vt. 480, 484, 431 A.2d 1237, 1239 (1981) (implicit scienter requirement in the crime of leaving the scene of the accident). But see State v. Kerr, 143 Vt. 597, 605, 470 A.2d 670, 674 (1983) (refusal to add an element of scienter to the plain language of the statute prohibiting the carrying of a weapon while committing a felony). * While the crime of operating a vehicle without the owner's consent did not first arise in the ancient common law, it clearly has its roots in the common law crime of theft. See 23 V.S.A. § 1094 ("This section shall not be construed to limit or restrict prosecutions for grand larceny."). Thus, we conclude that intent is an indispensible element of the crime of operating a motor vehicle without the owner's consent.

The language of the statute itself implies that general intent to operate a vehicle without the owner's consent is an element of the crime. The term "without the consent of the owner" implies that defendant knew, or should have known, that he was operating the vehicle without the owner's permission. See State v. Simmons, 30 Wash.App. 432, 434, 635 P.2d 745, 746 (1981). To hold otherwise could lead to unjust results, since a person could reasonably but mistakenly believe that he was operating the vehicle with the owner's permission. See State v. Rice, 145 Vt. 25, 34, 483 A.2d 248, 253 (1984) (statutes should be interpreted to avoid unjust results).

Although defendant objected to the trial court's jury instruction as lacking the requirement of proof of general intent, we believe the court's charge was sufficient. The trial court charged in pertinent part: "The term consent as used here requires proof by the State that no voluntary agreement existed on the date of the alleged offense for the defendant to operate the vehicle. Consent means approval or permission for a certain act to be done." Both "voluntary agreement" and "permission" require that defendant knew or had reason to know that he had the owner's consent to use the vehicle for his own purposes. See Simmons, 30 Wash.App. at 436, 635 P.2d at 747. The lack of a "voluntary agreement" or "permission" to use the vehicle would correspond to a general intent to operate the vehicle without the owner's consent.

While the charge may not have been as clear as might be desired, all that "is required is that the court provide the jury with a charge that is 'full, fair, and correct on all issues, theories, and claims within the pleadings, so far as the evidence requires.' " State v. Day, 149 Vt. 165, 166, 540 A.2d 1042, 1043 (1987) (quoting State v. Ciocca, 125 Vt. 64, 74-75, 209 A.2d 507, 515 (1965)). See also State v. Bishop, 128 Vt. 221, 230, 260 A.2d 393, 399 (1969) (" 'if as a whole [the charge] breathes the true spirit and doctrine of the law, and there is no fair ground to say that the jury has been misled by it, it ought to stand.' ") (quoting Fassett v. Town of Roxbury, 55 Vt. 552, 556 (1883)). We find that the charge, as given, sufficiently covered defendant's lack-of-consent theory.

III.

Defendant failed to object to other portions of the jury instructions; therefore, we must find plain error in order to reverse defendant's convictions on the three remaining issues. See V.R.Cr.P. 30, 52(b); State v. Parker, ...

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