State v. Smith

• Decision Date: 17 May 1988
• Docket Number: No. 8714SC968,8714SC968
• Citation: 90 N.C.App. 161,368 S.E.2d 33
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Robin Stacy SMITH.

Page 33

368 S.E.2d 33

90 N.C.App. 161

STATE of North Carolina v. Robin Stacy SMITH.

No. 8714SC968.

Court of Appeals of North Carolina.

May 17, 1988.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Linda Anne Morris, Raleigh, for the State.

Loflin and Loflin by Dean A. Shangler, Durham, for defendant-appellant.

PARKER, Judge.

Defendant first assigns error to the trial court's denial of her motion to dismiss the charge of death by vehicle. Defendant's remaining assignments of error concern the requirement in the trial court's judgment that she pay restitution in the amount of $500,000 as a condition of her probation.

Defendant contends that G.S. 20-141.4(a2) is invalid under both the North Carolina and United States Constitutions because it imposes criminal liability without requiring a finding of criminal intent. General Statute 20-141.4(a2) provides:

Misdemeanor Death by Vehicle.--A person commits the offense of misdemeanor death by vehicle if he unintentionally causes the death of another person while engaged in the violation of any State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic, other than impaired driving under G.S. 20-138.1, and commission of that violation is the proximate cause of the death.

Misdemeanor death by vehicle is punishable by imprisonment of not more than two years, a fine of not more than $500, or both. G.S. 20-141.4(b).

Defendant argues that G.S. 20-141.4(a2) violates the due process clause of the fourteenth amendment to the United States Constitution and the "law of the land" clause in article I, § 19 of the North Carolina Constitution. These two clauses are synonymous. Watch Co. v. Brand Distributors and Watch Co. v. Motor Market, 285 N.C. 467, 474, 206 S.E.2d 141, 146 (1974). In construing the "law of the land" clause, decisions of the United States Supreme Court concerning federal due process are highly persuasive, but not binding on the courts of this State. Id.

As a matter of both State and federal constitutional law, legislatures may make the doing of an act a criminal offense even in the absence of criminal intent. See United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922); State v. Hales, 256 N.C. 27, 30, 122 S.E.2d 768, 771, 90 A.L.R.2d 804, 808 (1961); State v. Howard, 78 N.C.App. 262, 273, 337 S.E.2d 598, 605 (1985), disc. rev. denied and appeal dismissed, 316 N.C. 198, 341 S.E.2d 581 (1986). Defendant contends, however, that a criminal conviction without a finding of criminal intent is constitutionally permissible only when the punishment is slight and the conviction does not carry any moral stigma. In Poultry Co. v. Thomas, 289 N.C. 7, 220 S.E.2d 536 (1975), our Supreme Court stated:

Both federal and state courts have specifically held that it is not a violation of due process to punish a person for certain crimes related to the public welfare or safety even when the person is without knowledge of the facts making the act criminal. This is particularly so when the controlling statute does not require the act to have been done knowingly or willfully. [Citations omitted]. The bases for the inclusion of violations of motor vehicle and traffic laws within the scope of this rule are that (1) the requirement of proving intent or guilty knowledge would make it impossible to enforce such laws in view of the tremendous number of petty offenses growing out of the host of motor vehicles upon our roads and (2) the punishments for such violations are usually a small fine. We would not extend the rationale of this rule beyond petty offenses involving light punishment nor would we extend its operation to any crime involving moral delinquency.

289 N.C. at 14-15, 220 S.E.2d at 541-42 (emphasis added); see also Morissette v. United States, 342 U.S. 246, 256, 72 S.Ct. 240, 246, 96 L.Ed. 288, 297 (1952) (statutes may be construed to dispense with the requirement of intent when the penalties are small and conviction does no great damage to the offender's reputation).

Defendant contends that a finding of traditional criminal intent is constitutionally required to support her conviction. Defendant relies principally on the statements of our Supreme Court in Poultry Co. v. Thomas, supra, and of the United States Supreme Court in Morissette v. United States, supra, to the effect that criminal intent must be an element of all criminal offenses except petty crimes. Even assuming for purposes of argument that a violation of G.S. 20-141.4(a2) is not a "petty offense," we are of the opinion that the cited cases do not require us to hold that G.S. 20-141.4(a2) is unconstitutional as applied to defendant.

As a basic premise, the statute is presumed to be constitutional. In re Banks, 295 N.C. 236, 239, 244 S.E.2d 386, 388 (1978). Moreover, contrary to defendant's contentions, the United States Supreme Court has not decided that due process of law requires a finding of criminal intent to support a conviction of a non-petty offense. The Court in Morissette v. United States was not considering the constitutionality of a statute, but was determining whether a criminal statute should be construed to require criminal intent when no intent was specified in the statute. 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288; see also United States v. United States Gypsum Co., 438 U.S. 422, 437-38, 98 S.Ct. 2864, 2873-74, 57 L.Ed.2d 854, 869-70 (1978) (when statute is silent as to intent, requirement of criminal intent is presumed).

When considering the constitutional limitations on the power of state legislatures to define criminal offenses, the Court has stated: "There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition." Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228, 231 (1957). The Supreme Court has found in some instances that due process requires a finding of criminal intent, but those cases are clearly distinguishable from the present case. Lambert v. California, supra (state could not criminalize a mere failure to act without showing that defendant knew of duty to act); Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959) (criminal intent constitutionally required where freedom of speech is affected).

Similarly, our own Supreme Court's statements in Poultry Co. v. Thomas do not support defendant's contentions. Like the Court in Morissette, the Court in Poultry Co. was not ruling on the constitutionality of a statute. Poultry Co. was a negligence action in which the Court held that the plaintiff's violation of a traffic statute was negligence per se even though he was unaware of the facts constituting the violation. Poultry Co., 289 N.C. at 15, 220 S.E.2d at 542. The Court's statement to the effect that it would not extend its reasoning to more serious offenses was unnecessary to its decision and, as dictum, does not constitute binding precedent. See In re University of North Carolina, 300 N.C. 563, 576, 268 S.E.2d 472, 480 (1980).

Even if we were bound by the language in Poultry Co., that case is readily distinguishable. The issue in Poultry Co. was whether the plaintiff could be held responsible for his violation of G.S. 20-150(c), which prohibits passing at intersections in cities or towns. The constitutionality of that statute was questioned when it was applied to a motorist who neither knew nor had reason to know that he was within city limits at the time of the violation. Poultry Co. v. Thomas, 289 N.C. at 19, 220 S.E.2d at 544 (Sharp, C.J., dissenting). The issue in Poultry Co. was essentially whether the defense of mistake of fact was applicable to the offense. See State v. Atwood, 290 N.C. 266, 274-75, 225 S.E.2d 543, 547-48 (1976) (Exum, J., concurring). In the present case, defendant's conviction is not based upon facts that she had no way of knowing. To the contrary, her conviction based upon a violation of G.S. 20-150(a) shows that the jury found that she should have known that the pass could not be made in safety.

We next consider whether, as defendant contends, G.S. 20-141.4(a2) is a strict liability offense that imposes criminal liability without regard to the offender's state of mind. The degree of culpability required to support a conviction for misdemeanor death by vehicle has never precisely been defined by our courts. This Court has held that "criminal responsibility for death by vehicle is not dependent upon the presence of culpable or criminal negligence." State v. Freeman, 31 N.C.App. 93, 97, 228 S.E.2d 516, 519, disc. rev. denied, 291 N.C. 449, 230 S.E.2d 766 (1976). Criminal or culpable negligence is something more than ordinary negligence in the law of torts. Id. at 96, 228 S.E.2d at 518. Defendant contends that G.S. 20-141.4(a2) does not require even ordinary negligence. The trial court in this case instructed the jury that the statute "imposes absolute liability without regard to negligence." Defendant does not assign error to the court's instruction, but argues that it was a correct statement of the law.

Although the jury was not required to find that defendant was negligent, the trial court did instruct it that defendant could not be convicted unless the State proved beyond a reasonable doubt that she had violated a provision of the North Carolina Motor Vehicle Code and that the violation proximately caused the victim's death. Specifically, the jury was required to find that defendant violated G.S. 20-150(a), which provides that a driver shall not overtake and pass another vehicle unless the pass can be made in safety. A violation of G.S. 20-150(a) is negligence per se. Rouse v. Jones, 254 N.C. 575, 579, 119 S.E.2d 628, 632 (1961). Thus, the jury's finding of guilt necessarily included a finding that defendant was negligent.

Recognizing that the language of G.S. 20-141.4(a2) could permit a conviction to be based upon the violation of a traffic ordinance that is...