State v. Richland, 14–196.

Docket NºNo. 14–196.
Citation132 A.3d 702
Case DateSeptember 18, 2015
CourtUnited States State Supreme Court of Vermont

132 A.3d 702

STATE of Vermont

No. 14–196.

Supreme Court of Vermont.

Sept. 18, 2015.

132 A.3d 703

William H. Sorrell, Attorney General, and Benjamin D. Battles, Assistant Attorney General, Montpelier, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, Rebecca Turner, Appellate Defender, and Oliver Abbott, Law Clerk (On the Brief), Montpelier, for Defendant–Appellant.



¶ 1. Defendant Kent Richland appeals his conviction for enabling the consumption of alcohol by a minor in violation of 7 V.S.A. § 658(a)(2), following a jury trial in Chittenden Superior Court, and the probation conditions imposed by the court at sentencing. We reverse the trial court's holding with respect to the knowledge requirement of § 658(a)(2) and remand for a new trial. Because of our disposition on the conviction, we do not reach defendant's challenges to the probation conditions.

¶ 2. The testimony presented at trial demonstrates the following basic facts. On May 10, 2013, defendant received a text message from a sixteen-year-old minor asking defendant to purchase alcohol for him. Defendant agreed but could not find his identification and instead arranged for a friend to purchase the alcohol. Later that day, defendant's friend purchased a bottle of gin for the minor at a local beverage store. On the morning of May 11, the minor was found dead near his family home after crashing his all-terrain vehicle (ATV) while intoxicated.

¶ 3. Defendant was charged with enabling the consumption of alcohol by a minor under 7 V.S.A. § 658(a)(2), which states: "No person shall ... knowingly enable the consumption of malt or vinous beverages or spirituous liquors by a person under the age of 21."1 At trial, the court instructed the jury on the elements of § 658(a)(2), informing the jurors that the State must prove defendant knowingly enabled the victim to consume alcohol but need not prove defendant knew the victim was under the age of twenty-one. Defendant objected to the instruction on the age element. In overruling defendant's objection, the court stated:

Knowingly is an adverb and it modifies enabled. It does not affect knowledge of the age of the individual.... [I]t's always been generally accepted that certainly the sale of alcohol is a strict liability offense. And the individual does not have to know that the individual being furnished with a sale of the alcohol was under the age of 21 and I don't know any reason why [the two statutory provisions] should be any different.

¶ 4. Defendant moved for a judgment of acquittal pursuant to Vermont Rule of Criminal Procedure 29, arguing that the evidence was insufficient for a reasonable jury to conclude that he had knowledge of the minor's age or that he created a direct and immediate opportunity for the minor to consume alcohol. The court denied defendant's motion, finding the evidence sufficient

132 A.3d 704

to sustain a jury verdict of guilty and reiterating its statement that the age element is strict liability and does not require proof of knowledge. Defendant was found guilty after a short jury deliberation and sentenced to twelve-to-twenty-four-months incarceration, all suspended except for six months to serve.2 This appeal followed.

¶ 5. Defendant raises four issues on appeal: (1) the trial court committed reversible error in instructing the jury that § 658(a)(2) does not require knowledge of the minor's age; (2) the evidence presented at trial was insufficient to prove defendant enabled the minor's alcohol consumption; (3) the court's imposition of probation during the pendency of this appeal creates a harsher, indeterminate term of probation, thereby penalizing defendant for exercising his right to appeal; and (4) the standard form probation conditions are invalid. We agree with defendant on the first issue and hold that § 658(a)(2) requires the State to prove defendant had knowledge of the minor's age and that the court's error in instructing the jury to the contrary was not harmless. Because we reverse and remand for a new trial, we need not address the remaining three issues.

¶ 6. Our inquiry here starts with the language of § 658(a)(2). The issue of whether the age element of § 658(a)(2) requires knowledge is a matter of statutory interpretation, which we review de novo. Stowell v. Action Moving & Storage, Inc., 2007 VT 46, ¶ 9, 182 Vt. 98, 933 A.2d 1128 ; see State v. Dann, 167 Vt. 119, 132, 702 A.2d 105, 113 (1997) (stating that "the determination of the required mental element is a question of statutory construction"). Our goal in interpreting a statute is to carry out the intent of the Legislature. State v. LeBlanc, 171 Vt. 88, 91, 759 A.2d 991, 993 (2000) ; see State v. Messier, 145 Vt. 622, 627–28, 497 A.2d 740, 743 (1985) (explaining that task of defining crimes generally belongs to Legislature). We start with the plain language of the statute, and if the meaning is clear, we will enforce it according to its terms. LeBlanc, 171 Vt. at 91, 759 A.2d at 993. In doing so, "we ‘presume that all language in a statute was drafted advisedly, and that the plain ordinary meaning of the language used was intended.’ " Id. (quoting Committee to Save Bishop's House, Inc. v. Medical Center Hospital of Vermont, Inc., 137 Vt. 142, 153, 400 A.2d 1015, 1021 (1979) ). As we explain below, based on a plain reading of the statute, we conclude that § 658(a)(2) requires that a defendant know that the person enabled to consume alcoholic is a minor.

¶ 7. The plain terms of § 658(a)(2) include a scienter element: knowledge. The Legislature explicitly imposed criminal liability on individuals who "knowingly enable the consumption of malt or vinous beverages or spirituous liquors by a person under the age of 21." 7 V.S.A. § 658(a)(2) (emphasis added). The core of the dispute, however, is not the presence of the scienter element but whether that element attaches to the clause "by a person under the age of 21." The State argues that "knowingly" modifies only the term "enable," the term it immediately precedes, while defendant contends that "knowingly" is read to modify all successive

132 A.3d 705

elements of the statute, up to and including the age requirement.

¶ 8. When construing a criminal statute, we presume that the Legislature knows how to incorporate a scienter element. See Kerr, 143 Vt. at 605, 470 A.2d at 674 ; see also LeBlanc, 171 Vt. at 92, 759 A.2d at 993 (explaining that Legislature knows how to incorporate terms into statute and that, when such terms are omitted, we presume Legislature intended to do so). The corollary to this assertion is that when the Legislature expressly includes an element of scienter, we presume that it is aware of its effect on the other elements of the statute. Cf. Nelson v. Town of St. Johnsbury Selectboard, 2015 VT 5, ¶ 15, 198 Vt. 277, 115 A.3d 423 (stating that Legislature was cognizant of meaning of "for cause" and its effect on other terms in town manager statute).

¶ 9. The effect the scienter element has on the other successive elements of a criminal statute is determined by a well-established rule of statutory construction, one that has been codified by the American Law Institute (ALI) and endorsed by both the judicial and legislative branches of state and federal governments,3 including this Court. ALI's Model Penal Code provides: "When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears." Model Penal Code § 2.02(4).4 Applying this method of construction

132 A.3d 706

to § 658(a)(2), we would distribute the term "knowingly" to all successive elements of the statute, including the age of the minor. This method of construction aligns with our own presumption in favor of requiring an element of mens rea in criminal statutes. See State v. Stanislaw, 153 Vt. 517, 523, 573 A.2d 286, 290 (1990) (explaining that "the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo–American criminal jurisprudence[,] ... [and] unless expressly provided otherwise by the legislature, ... a crime is composed of an act and an intent, which concur at a point in time" (emphasis added) (quotations and citations omitted)); see also State v. Beayon, 158 Vt. 133, 135, 605 A.2d 527, 528 (1992) (observing that we often have "implied guilty intent as an element when none was expressly provided by the statute").

¶ 10. The United States Supreme Court adopted a similar distributive rule in Flores–Figueroa v. United States, 556 U.S. 646, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009), in which it analyzed the scienter element in 18 U.S.C. § 1028A(a)(1), which criminalizes "knowingly transfer[ing], possess[ing], or us [ing], without lawful authority, a means of identification of another person." Id. at 647, 129 S.Ct. 1886. In holding that "knowingly" attaches to all elements of the statute, the Court explained that when a phrase in a criminal statute introduces the elements of a crime with the...

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    ...the person must not only knowingly enable, but also know that the person being enabled is a minor. State v. Richland , 200 Vt. 401, 413, 132 A.3d 702, 710 (2015). The court acknowledged that "the presumption that mens rea attaches to all elements of a statute may be rebutted by a showing of......
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