4 Mens Rea 4 Mens Rea
The "Guilty Mind" Element
The materials in this section introduce you to the concept of mens rea: the state of mind specified by statute that must be proven for a conviction. Like actus reus, mens rea weaves together ideas about the offender's blameworthiness, the seriousness of the crime, and the punishment that should be imposed.
Historically, some crimes were considered to be "general intent" crimes and others were "specific intent" crimes. (See Note 4.21 in this unit.) The MPC, whose definition is now used in many states, categorizes intent into four tiers of culpability: purposely (acting with a conscious objective to produce the offense specified in the statute); knowingly (acting while being practically certain of the offending result); recklessly (acting with a conscious disregard for the risk of causing the offending result); and negligently (causing the offending result when the actor should have been aware of the risk).
Beyond these forms of guilt, you will find what are known as strict liability offenses: crimes for which the defendant's state of mind is irrelevant. These typically involve acts/harms determined to be particularly injurious to public health and must be deterred/punished regardless of intent. To be convicted under a strict liability statute, the defendant must only have committed a voluntary act (actus reus) that caused the harmful result (causation) the statute was designed to prevent. Some examples of strict liability offenses are traffic violations, statutory rape, and felony murder.
As you read these cases, consider what reasoning courts use to justify their decisions and what these reasons reveal about the evolving concept of blameworthiness. Always pay close attention to how the "guilty" state of mind is framed by the relevant statute(s) and the relationships between various mens rea and the severity of punishment.
While many statutes will seem loosely based on the four-tiered MPC framework, you should not assume they are identical. It is important to remember that the enacted legislation, and not the MPC, is what controls within any jurisdiction. In other words, even if a statute uses the mens rea term "intentional" in a manner akin to the MPC's definition of "purposeful," you may not substitute one term for another. As you work through these cases, train yourself to focus squarely on the actual language of a given statute and how a lawyer advocating for either side might interpret it.
4.1 Regina v. Cunningham 4.1 Regina v. Cunningham
REGINA v. CUNNINGHAM.
[Reported by G. D. BLACK, Esq., Barrister-at-Law.]
Criminal Law - Mens Rea - "Maliciously" - Causing coal gas to be taken so as to endanger life - Whether “wickedness” equivalent to “malice” in statutory crime - Whether “maliciously” postulates foresight of consequence - Offences against the Person Act, 1861 (24 & 25 Viet. c. 100), s. 23.
The appellant stole a gas meter and its contents from the cellar of a house and in so doing fractured a gas pipe. Coal gas escaped, percolated through the cellar wall to the adjoining house, and entered a bedroom with the result that W., who was asleep, inhaled a considerable quantity of the gas. The appellant was charged on an indictment preferred under the Offences against the Person Act, 1861, s. 23,[1] with unlawfully and maliciously causing to take a noxious thing, namely, coal gas, so as thereby to endanger her life. The judge directed the jury that “maliciously" meant “wickedly”-doing “something which he has no business to do and perfectly well knows it.” On an appeal against conviction:-
Held, allowing the appeal, that the word maliciously” in a statutory crime postulated foresight of consequence, and that an offence to be committed under section 23 it was necessary for the accused person either to intend to do the particular type of harm in fact done or, foreseeing that such harm might be done, for him recklessly to take the risk of it.
Reg. v. Pembliton (1874) L.R. 2 C.C.R. 119 applied.
APPEAL against conviction.
The appellant, Roy Cunningham, was charged at Leeds Assizes on two indictments. To the first indictment, which contained two counts of larceny of a gas meter and its contents contrary to sections 8 and 2 of the Larceny Act, 1916, he pleaded Guilty, and there was no appeal in that respect. The second indictment, framed under section 23 of the Offences against the Person Act, 1861, charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger her life, and to that he pleaded Not Guilty. Oliver J. directed the jury that for the purpose of the section "maliciously" meant wickedly doing "something which he has no business to do and perfectly well knows it. 'Wicked' is as good a definition as any other which you would get.” The appellant was convicted, and appealed on the ground of misdirection of the jury.
The facts are fully set out in the judgment of Byrne J.
S. E. Brodie for the appellant. The prosecution must prove on a charge brought under section 23 of the Offences against the Person Act, 1861, that the accused acted maliciously and unlawfully. Malice imports mens rea. The nature of the mens rea required is that the accused must either intend to do the harm in fact done or he must foresee that the actual harm done might occur as a result of his actions but nevertheless continues recklessly, not caring whether it be done or not. There is no authority decided on the point under section 28, but Reg. v. Pembliton,[2] a case under section 51 of the Malicious Damage Act, 1861, and which concerned damage to property, supports the contention: See per Lord Coleridge C.J. and Blackburn J.[3]Pembliton's case[4] was considered in Reg. v. Latimer,[5] a decision under Section 20 of the Offences against the Person Act, 1861, and that case is authority for the proposition that the definition of “malice " contended for applies equally to offences against the person as it does to offences against property. Oliver J.’s direction to the jury that “malice” meant “wickedness is insufficient. He was also wrong in refusing to withdraw the case from the jury at the end of the prosecution evidence.
J. S. Snowden, for the Crown, was not called upon to argue whether the case should have been withdrawn from the jury. He conceded that it would be to difficult to seek to uphold the direction. [Reference was also made to Reg. v. Faullmer[6] and Reg. v. Martin.[7]
Cur. adv. vult.
May 27. BYRNE J. read the following judgment. The appellant was convicted at Leeds Assizes upon an indictment framed under section 23 of the Offences against the Person Act, 1861, which charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah Wade.
The facts were that the appellant was engaged to be married and his prospective mother-in-law was the tenant of a house, No. 7A, Bakes Street, Bradford, which was unoccupied, but which was to be occupied by the appellant after his marriage. Mrs. Wade and her husband, an elderly couple, lived in the house next door. At one time the two houses had been one, but when the building was converted into two houses a wall had been erected to divide the cellars of the two houses, and that wall was composed of rubble loosely cemented.
On the evening of January 17, 1957, the appellant went the cellar of No. 7A, Bakes Street, wrenched the gas meter from the gas pipes and stole it, together with its contents, and in a second indictment he was charged with the larceny of the gas meter and its contents. To that indictment he pleaded guilty and was sentenced to six months imprisonment. In respect of that matter he does not appeal.
The facts were not really in dispute, and in a statement to a police officer the appellant said: “All right, I will tell you. I was short of money, I had been off work for three days, I got eight shillings from the gas meter. I tore it the wall and threw it away." Although there was a stop tap within two feet of the meter the appellant did not turn off the gas, with the result that a very considerable volume of gas escaped, some of which seeped through the wall of the cellar and partially asphyxiated Mrs. Wade, who was asleep in her bedroom next door, with the result that her life was endangered.
At the close of the case for the prosecution, Mr. Brodie, who appeared for the appellant at the trial and who has appeared for him again in this court submitted that there was no case to go to the jury, but the judge, quite rightly in our opinion, rejected this submission. The appellant did not give evidence.
The act of the appellant was clearly unlawful and therefore the real question for the jury was whether it was also malicious within the meaning of section 23 of the Offences against the Person Act, 1861.
Before this court Mr. Brodie has taken three points, all dependent upon the construction of that section. Section 23 provides:
“Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony . . .”
Mr. Brodie argued, first, that mens rea of some kind is necessary. Secondly, that the nature of the mens rea required is that the appellant must intend to do the particular kind of harm that was done, or, alternatively, that he must foresee that that harm may occur yet nevertheless continue recklessly to do the act. Thirdly, that the judge misdirected the jury as to the meaning of the word "maliciously.” He cited the following cases: Reg. v. Pembliton[1*], Reg. v. Latimer[2*] and Reg v. Faulkner[3*]. In reply, Mr. Snowden, on behalf of the Crown, cited Reg. v. Martin.[4*]
We have considered those cases, and we have also considered, in the light of those cases, the following principle which was propounded by the late Professor C. S. Kenny in the first edition of his Outlines of Criminal Law published in 1902 and repeated at p. 186 of the 16th edition edited by Mr. J. W. Cecil Turner and published in 1952:
“In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured."
The same principle is repeated by Mr. Turner in his 10th edition of Russell on Crime at p. 1592.
We think that this is an accurate statement of the law. It derives some support from the judgments of Lord Coleridge C.J. and Blackburn J. in Pembliton’s case.[5*] In our opinion the word maliciously in a statutory crime postulates foresight of consequence.
In his summing-up Oliver J. directed the jury as follows:
“You will observe that there is nothing there about 'with intention that that person should take it.' He has not got to intend that it should be taken; it is sufficient that by his unlawful and malicious act he causes it to be taken. What you have to decide here, then, is whether, when he loosed that frightful cloud of coal gas into the house which he shared with this old lady, he caused her to take it by his unlawful and malicious action. 'Unlawful' does not need any definition. It is something forbidden by law. What about 'malicious'? 'Malicious' for this purpose means wicked -- something which he has no business to do and perfectly well knows it. 'Wicked' is as good a definition as any other which you would get.”
“The facts which face you (and they are uncontradicted and undisputed; the prisoner has not gone into the box to seek to give any particular explanation) are these. Living in the house, which was now two houses but which had once been one and had been rather roughly divided, the prisoner quite deliberately, intending to steal the money that was in the meter . . . broke the gas meter away from the supply pipes and thus released the mains supply of gas at large into that house. When he did that he knew that this old lady and her husband were living next door to him. The gas meter was in a cellar. The wall which divided his cellar from the cellar next door was a kind of honeycomb wall through which gas could very well go, so that when he loosed that cloud of gas into that place he must have known perfectly well that gas would percolate all over the house. If it were part of this offense - which it is not -that he intended to poison the old lady, I should have left it to you to decide, and I should have told you that there was evidence on which you could find that he “intended that, since he did an action which he must have known would result in that. As I have already told you, it is not necessary to prove that he intended to do it; it is quite enough that what he did was done unlawfully and maliciously."
With the utmost respect to the learned judge, we think it is incorrect to say that the word "malicious" in a statutory offence merely means wicked. We think the judge was, in effect, telling the jury that if they were satisfied that the appellant acted wickedly - and he had clearly acted wickedly in stealing the gas meter and its contents - they ought to find that he had acted maliciously in causing the gas to be taken by Mrs. Wade so as thereby to endanger her life.
In our view it should have been left to the jury to decide whether, even if the appellant did not intend the injury to Mrs. Wade, he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it. We are unable to say that a reasonable jury, properly directed as to the meaning of the word maliciously in the context of section 23, would without doubt have convicted.
In these circumstances this court has no alternative but to allow the appeal and quash the conviction.
Appeal allowed.
Solicitors: Registrar, Court of Criminal Appeal; Director of Public Prosecutions.
[1] Offences against the Person Act, 1861, s. 23:
"Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony..."
[2] (1874) L.R. 2 C.C.R. 119.
[3] Ibid. 122.
[4] L.R. 2 C.C.R. 119.
[5] (1886) 17 Q.B.D. 359; 2 T.L.R. 626; 55 L.J.M.C. 135.
[6] (1877) 13 Cox C.C. 550.
[7] (1881) 8 Q.B.D. 54; 14 Cox C.C. 633.
[1*] (1874) L.R. 2 C.C.R. 119.
[2*] (1886) 17 Q.B.D. 359; 2 T.L.R. 626; 55 L.J.M.C. 135.
[3*] (1877) 13 Cox C.C. 550.
[4*] (1881) 8 Q.B.D. 54; 14 Cox C.C. 633.
[5*] L.R. 2 C.C.R. 119, 122.
4.2 Notes and Questions (Regina v. Cunningham) 4.2 Notes and Questions (Regina v. Cunningham)
Notes & Questions
1. This case turned on the question of whether the defendant acted "maliciously" under the meaning of the statute: The trial court instructed the jury that "'[w]icked' is as good a definition as any other which you would get" (Paragraph 28). The appellate court, as we just saw, disagreed with this interpretation of malice under the statute and overturned the conviction.
Historically, "malice aforethought" was a required element for the most serious homicide convictions. But the bounds of what constituted maliciousness have evolved and shifted over time and remain far from clear. The following passage provides some history:
[Around the thirteenth century] "malice aforethought". . . seemed to be used to distinguish homicides that were felonious from those that were excusable.... In the sixteenth century, malice appears to have been associated with the idea of a premeditated killing, especially one committed by lying-in-wait . . . . Because a killing with malice required planning, a sudden killing such as one occurring because of provocation, was not committed with malice. Although the term malice aforethought came to be used in the sense of significant premeditation, positive proof of planning activity was not always required. If no motive was obvious, and the killing was not in response to provocation, the law assumed that the killer had a concealed motive. This assumption led to the development of the concepts of "express" and "implied" malice. . . . By the nineteenth century . . . it had become clear that malice generally would be established by proof of intent to kill or intent to inflict serious injury, or "wanton disregard" of the risk to human life. As the meaning of malice moved away from premeditated killing, the role of provocation also changed, eventually being recognized as a form of mitigation in an intentional killing.
Suzanne Mounts, Malice Aforethought in California: A History of Legislative Abdication and Judicial Vacillation, 33 U.S.F. L. Rev. 313, 319-20 (1999).
In 1872, California codified these common law understandings of malice by using it to distinguish murder from manslaughter and defining it in section 188 as follows: "malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." Id. at 324.
2. Malice remains a key element that distinguishes the highest degree of murder from lesser convictions. To what extent do you now feel comfortable with your understanding of malice?
Recall from Becker (1.12) that California criminalizes "killing...with malice aforethought" (CPC section 187). Does the statute provide sufficient notice? Make an argument for why or why not.
3. Consider the four culpable mental states outlined by the MPC (See casebook section 4.3). Which MPC mental state was the defendant in Regina v. Cunningham guilty of? Explain your answer with reference to the facts from the case.
Do you think we have a better framework for blameworthiness in the MPC than the common law understanding of "malice"?
4. Consider the following hypothetical in light of the above discussion of intent/malice:
D wants to play a prank on his teacher so he bakes her a tray of marijuana-infused brownies and brings them to school for her birthday. They are delicious, so she quickly eats the entire tray whereupon she experiences acute dizziness, heart palpitations, nausea and panic, necessitating a trip to the emergency room.
D is charged with violating Section 23 of the criminal code: “Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony . . .”
Applying the holding from Regina v. Cunningham and your understanding of statutory analysis, which of the following arguments will help in D’s defense and why?
- The teacher wasn’t seriously harmed.
- I only used a small amount of pot, and I’ve never heard of someone dying or being permanently injured from ingesting pot brownies.
- Marijuana is legal in my state and I only intended to play a joke, not to do harm
- Who eats a full tray of brownies in one sitting? It’s unforeseeable!
4.3 Model Penal Code on Intent (2.02, 2.03) 4.3 Model Penal Code on Intent (2.02, 2.03)
MPC SECTION 2.02. GENERAL REQUIREMENTS OF CULPABILITY
(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.
(2) Kinds of Culpability Defined.
(a) Purposely. A person acts purposely with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
(b) Knowingly. A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
(c) Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
(d) Negligently. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.
(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.
(4) Prescribed Culpability Requirement Applies to All Material Elements. 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.
(5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely.
(6) Requirement of Purpose Satisfied if Purpose Is Conditional. When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.
(7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.
(8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.
(9) Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the Code so provides.
(10) Culpability as Determinant of Grade of Offense. When the grade or degree of an offense depends on whether the offense is committed purposely, knowingly, recklessly or negligently, its grade or degree shall be the lowest for which the determinative kind of culpability is established with respect to any material element of the offense.
MPC SECTION 2.03. GENERAL REQUIREMENTS OF CULPABILITY
Causal Relationship Between Conduct and Result; Divergence Between Result Designed or Contemplated and Actual Result or Between Probable and Actual Result.
(1) Conduct is the cause of a result when:
(a) it is an antecedent but for which the result in question would not have occurred; and
(b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense.
(2) When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless:
(a) the actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or
(b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense.
(3) When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he should be aware unless:
(a) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or
(b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense.
Consider the following problems in light of the the language on culpability in the MPC
MPC 2.02 Problems
- D wants to kill V, so D drives a car into V at a very high speed. At the time, V is holding their infant X, whom D loves and does not want to kill. Both V and X die.
With regard to V, what mens rea did D possess under 2.02?
With regard to X, what mens rea did D possess under 2.02? - D hates the house next door because it blocks the sunlight. She decides to burn it down, knowing that her neighbor is inside. D knows there is a good chance neighbor might die, so she tosses salt over her shoulder immediately before torching the house.
If D genuinely believed the salt would completely protect neighbor from harm, but neighbor nonetheless dies, with what level of mens rea culpability did D kill neighbor?
If D was not sure whether the “salt over shoulder” trick would protect neighbor, but was optimistic that it would, with what level of mens rea culpability did D kill neighbor?
4.4 State v. Blurton 4.4 State v. Blurton
537 S.E.2d 291
The STATE of South Carolina, Respondent, v. Gregory R. BLURTON, Appellant.
No. 3236.
Court of Appeals of South Carolina.
Heard June 7, 2000.
Decided Aug. 7, 2000.
Rehearing Denied Oct. 7, 2000.
*504Tara Dawn Shurling, of Columbia, for appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Walter M. Bailey, Jr., of Summerville, for respondent.
A jury convicted Gregory R. Blurton of two counts of armed robbery, kidnapping, grand larceny of a motor vehicle, and *505failure to stop for a blue light. The trial court sentenced Blurton to three life sentences for the kidnapping and armed robbery convictions, ten years for grand larceny, and three years for failing to stop for a blue light, with all sentences running concurrently. Blurton appeals. We reverse and remand for a new trial.
FACTS
On April 6, 1997, Blurton entered the Orangeburg WalMart between 11:30 p.m. and 12:00 midnight. After asking for Roger, an assistant manager who was not working that night, Blurton told assistant manager Brandon Beckman he needed access to the electrical room to do some work.1 Beckman tried to open the room but did not have a key to the lock.
As Blurton and Beckman walked away, Blurton pulled out a gun and demanded that Beckman take him to the cash office and give him the money inside. Brenda Arant, the cash office clerk, was still inside the office. Blurton ordered Beckman to get on the floor and demanded Arant fill a shopping bag with money. Blurton screamed his orders and threatened to shoot Beckman and Arant if they did not cooperate. Blurton told Beckman he needed Beckman to drive him down the-road. After Beckman responded that he did not have a car at the store, Blurton demanded Arant’s keys. When Arant informed Blurton her car keys were in her locker, Blurton bit off the end of the phone cord, told Arant not to call anybody for at least five minutes, and pushed Beckman out of the office. Although there was in excess of $200,000 in the cash office, Blurton left with only $8,500.
After leaving the cash office, Blurton put the gun in his pocket and forced Beckman to walk outside the store with him. Once outside, Blurton chose the car of a female customer who had just arrived in the parking lot. As the men approached the woman, Blurton pulled the gun out again. The woman threw down her purse, screamed, and started to run away. While pointing the gun at her, Blurton demanded her keys. The woman threw them at him, whereupon Blurton climbed into her car and drove away.
*506A short time after leaving the parking lot, Blurton ran a red light, attracting the attention of a police officer. When the officer attempted to stop Blurton, Blurton led the police on a high speed chase which ended after he wrecked the customer’s car.
At trial, Blurton did not deny committing the acts of which he was accused, but argued a lack of criminal intent. During his testimony, he explained that James Mayfield, another assistant manager of the Orangeburg Wal-Mart, was a former Navy SEAL who also worked for the Central Intelligence Agency (CIA). He further explained that Mayfield recruited him to assist the CIA in its effort to infiltrate a drug cartel. In exchange for his assistance, Blurton was promised a new identity and a presidential pardon for several bank robberies he committed in the 1970s. Blurton claimed Mayfield gave him surveillance and firearms training and loaned him hand to hand combat videos developed by a Navy SEAL instructor. Additionally, Blurton testified he had completed several assignments in relation to the CIA’s infiltration plan, codenamed “Operation Double White.”
The “staged” robbery of the Wal-Mart was Phase Three of the operation, an attempt to convince the drug cartel that Blurton was a wanted and dangerous man, thereby facilitating his infiltration of the group. He explained the robbery was fake and, according to Mayfield, both Beckman and Roger were aware of the plan. Mayfield furnished the gun for Blurton to use during the staged crimes. While in the cash office, Blurton claims he decided to have Arant fill the bag with one dollar bills, rather than with the sizeable completed deposits, as Mayfield had instructed, because he did not want to be responsible for a large sum of money. Blurton was supposed to leave the money at a specific drop location at the back of a hotel, where Mayfield would retrieve it and promptly return it to Wal-Mart on behalf of the CIA. According to Blurton, he had to pretend the robbery was real to put on a “show” for the security cameras and members of the local sheriffs department who, according to Mayfield, were involved with the drug cartel.
Blurton stated that when he saw the customer’s car in the parking lot, he assumed it was his “ride.” He thought the *507customer was cooperating with the CIA and that her show of fear and panic was an act. He testified that he evaded police officers because he was waiting for the CIA to intercede on his behalf, so he would not get caught.
Although Blurton consistently maintained that he was working for the CIA when he committed the acts involved in each of the charged offenses, his trial counsel simply attempted to prove Blurton genuinely believed he was a CIA operative at the time of the alleged crimes and thus lacked criminal intent.
LAW/ANALYSIS
I. Evidentiary Issues
Blurton’s trial counsel attempted to present evidence which would corroborate his explanation of events and support his defense of lack of criminal intent. The evidence included (1) taped telephone conversations between Blurton and Mayfield; (2) testimony that the investigating officer thought Blurton actually believed he was part of a CIA operation; (3) testimony that others heard and believed Mayfield’s claim that he was a former Navy SEAL; and (4) two newspaper articles which showed Mayfield convinced the local newspaper he was a Navy SEAL. The trial court excluded this evidence. Blurton argues this was error.
Decisions regarding the admissibility of evidence are within the trial court’s sound discretion and will not be reversed on appeal absent a prejudicial abuse of that discretion. State v. Smith, 337 S.C. 27, 522 S.E.2d 598 (1999) (citing State v. Nance, 320 S.C. 501, 466 S.E.2d 349 (1996)); State v. Fulton, 333 S.C. 359, 509 S.E.2d 819 (Ct.App.1998).
A. Taped Conversations
Blurton’s counsel sought to admit taped telephone conversations between Blurton and Mayfield which were made without Mayfield’s knowledge. Blurton made the tapes after the police investigator concluded Mayfield was also a suspect based on interviews with Blurton. During the conversations, Mayfield repeatedly affirmed or failed to deny Blurton’s statements that Mayfield had involved him in the CIA operation and that the robbery was staged. The trial court excluded the *508tape recordings as inadmissible hearsay, but allowed the defense to proffer the tapes and transcripts prepared from them into evidence.2 We agree that this evidence should have been admitted.
Hearsay is generally inadmissible. Rule 802, SCRE. “Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted.” Jackson v. Speed, 326 S.C. 289, 304, 486 S.E.2d 750, 758 (1997); see also Rule 801(c), SCRE (“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). A statement that is not offered to prove the truth of the matter asserted should not be excluded as hearsay. See State v. Blackburn, 271 S.C. 324, 247 S.E.2d 334 (1978) (statement implicating defendant in alleged prior crimes, which was not offered to prove the truth of the matter asserted, that is, that defendant in fact committed the prior crimes, but to establish motive, was not “hearsay” and its admission was not error); Hawkins v. Pathology Assocs. of Greenville, P.A., 330 S.C. 92, 498 S.E.2d 395 (Ct.App.1998) (allowing admission of letters, an anniversary card, and video to show close familial bond between the decedent, her husband, and her children in a malpractice action).
In this case, the tapes were not offered to prove the veracity of any statements made during the conversations between Blurton and Mayfield. Rather, they were offered to show that Blurton had been led to believe the robbery was staged and that his actions were sanctioned by the CIA. Because these conversations would have added credence to Blurton’s defense that he lacked criminal intent and were not hearsay, the trial court erred in excluding them. See State v. Harris, 311 S.C. 162, 167, 427 S.E.2d 909, 912 (Ct.App.1993) (“Due process requires that a criminal defendant be given a reasonable opportunity to present a complete defense.”).
B. Investigator’s Opinion on Blurton’s State of Mind
In a preliminary hearing, Detective Jack Coleman, the investigator in this case, said he was convinced Blurton be*509lieved he was involved in a CIA operation when he robbed the Wal-mart. The court excluded the testimony, determining it was the province of the jury to determine whether Blurton believed he was working for the CIA when he committed the charged crimes.3 We find no abuse of discretion.
“The general rule is' that opinion testimony which is determinative of the ultimate fact in issue should be excluded as an invasion of the province of the factfinder. This rule, however, is not inflexible.” Richmond v. Tecklenberg, 302 S.C. 331, 334, 396 S.E.2d 111, 113 (Ct.App.1990) (citing State v. Moorer, 241 S.C. 487, 129 S.E.2d 330 (1963), overruled on other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991)); see also State v. Koon, 278 S.C. 528, 298 S.E.2d 769 (1982), overruling on other grounds recognized by State v. Matthews, 291 S.C. 339, 353 S.E.2d 444 (1986) (holding trial court properly excluded testimony concerning whether a mitigating factor was present as such determination was the province of the jury). Lay witnesses are permitted to offer opinion testimony when such testimony is rationally related to the witness’s perception, does not require special knowledge, and may assist the jury’s understanding of the witness’s testimony. See Rule 701, SCRE.
While we believe the trial court could have properly admitted the detective’s prior testimony into evidence, the court’s refusal to do so does not constitute an abuse of discretion. Blurton did not attempt to offer the detective as an expert in the beliefs of others. The detective’s opinion was not necessary for the jury to understand other portions of his testimony. Furthermore, the testimony was the investigator’s opinion on the ultimate factual issue in the case — whether Blurton believed he was working for the CIA and lacked criminal intent. Therefore, we hold the trial court’s refusal to admit the prior testimony was not reversible error.
*510On appeal, Blurton argues the detective’s opinion was admissible as an admission under Rule 801(d)(2)(A), SCRE.4 This rule provides an exception to the hearsay rule. Thus, it would allow the admission of evidence which would otherwise be excluded as hearsay. The detective’s opinion in this case was not excluded as hearsay, but because the trial court determined it was the jury’s province to determine whether Blurton believed he was working for the CIA when he committed the charged crimes. Therefore, whether the detective’s opinion was admissible under Rule 801(d)(2)(A) is not relevant to the trial court’s ruling concerning the testimony’s admissibility.
C. Whether Others Believed Mayfield to be a Navy SEAL
Blurton also attempted to introduce testimony that other people at Wal-Mart heard and believed Mayfield’s statements that he was a former Navy SEAL. The trial court excluded the evidence, concluding it was both hearsay and irrelevant. Blurton asserts the court abused its discretion in excluding the evidence. We agree.
The testimony did not constitute hearsay because it was not offered to prove the truth of any out of court statements and should not have been excluded on those grounds. See Rule 801(c), SCRE. Blurton’s counsel did not offer evidence that Mayfield represented himself to be a former Navy SEAL to prove Mayfield actually was one. In fact, it is undisputed that Mayfield was never a Navy SEAL. The evidence was offered, in part, to corroborate Blurton’s testimony that Mayfield told him and he believed Mayfield was a former SEAL. Therefore, the evidence should not have been excluded as hearsay.
Nor was the testimony irrelevant. Essentially, the excluded testimony would have shown that it was common belief among Wal-Mart employees, fueled by Mayfield’s own statements, that he was a former Navy SEAL. The fact that Mayfield told this falsehood about his past to others, and that they believed him, tended to corroborate Blurton’s claimed *511belief in the same falsehood. This would help explain why Blurton would believe Mayfield’s claim that he worked for the CIA. Furthermore, the fact that it was common knowledge that Mayfield was a former SEAL lends credibility to Blur-ton’s alleged belief that other members of management were aware of his purported CIA status and were cooperating with him in the “staged” robbery. Thus, the evidence shows Blurton’s state of mind at the time he committed the crimes. The evidence was relevant to Blurton’s argument that he lacked criminal intent, a necessary element of the charged crimes. See State v. Ferguson, 302 S.C. 269, 395 S.E.2d 182 (1990) (statutory crimes ordinarily include some elements of intent); State v. Thrailkill, 73 S.C. 314, 53 S.E. 482 (1906) (criminal intent is an essential element in every common law crime).
D. Newspaper Articles
Blurton also offered two newspaper articles printed by Orangeburg’s newspaper, The Times and Democrat.5 In the first article, entitled “Never Give Up,” the newspaper recounted Mayfield’s fictional history as a Navy SEAL. Mayfield was quoted in the article describing the rigorous training and lessons he gained from his experience as a SEAL. The second article, printed after Mayfield’s arrest, discussed the Wal-Mart robbery and, in retracting the prior article, stated that Mayfield had never been a Navy SEAL. The trial court held both articles inadmissible hearsay. We agree with Blur-ton that the articles should have been admitted.
The newspaper articles did not constitute hearsay because they were not offered for the truth of the statements contained in them, but to show Mayfield’s ability to persuade and trick others. Because of the purpose for which they were offered, the articles clearly were not hearsay and were improperly excluded. See Jackson, 326 S.C. 289, 486 S.E.2d 750; Rule 801(c), SCRE.
*512II. State’s Closing Argument
Blurton also asserts the trial court erred in overruling his objection, denying his. motion to strike and his motion for a mistrial when the assistant solicitor accused him of lying in his testimony.
During closing arguments, the assistant solicitor accused Blurton twice of lying based on a defense psychiatrist’s admission that she “diagnosed him as suffering from malingering, which is the deliberate production of false symptoms for the purpose of secondary gain.” Blurton objected and moved to strike, arguing it is improper to call the defendant a liar in closing arguments. The trial court responded by instructing the prosecutor to “Go ahead.” At the close of the State’s argument, Blurton moved for a mistrial, which the court denied.
Our supreme court has previously held it is improper to call a party a liar in closing argument. See Major v. Alverson, 183 S.C. 123, 190 S.E. 449 (1937). However, not all improper closing arguments require reversal. In criminal cases, “[a] new trial will not be granted unless the prosecutor’s comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” State v. Huggins, 325 S.C. 103, 107 481 S.E.2d 114, 116 (1997). The propriety of the state’s closing argument will be examined in light of the entire record. State v. Nathari, 303 S.C. 188, 399 S.E.2d 597 (Ct.App.1990).
While we agree that the assistant solicitor’s comments were improper, they do not mandate reversal alone. However, the cumulative effect of this error, when coupled with the exclusion of the previously discussed evidence, warrants reversal. Cf. State v. Johnson, 334 S.C. 78, 93, 512 S.E.2d 795, 803 (1999) (citations omitted) (“cumulative error doctrine provides relief to a party when a combination of errors that are insignificant by themselves have the effect of preventing a party from receiving a fair trial and it requires the cumulative effect of the errors to affect the outcome of the trial”). The prosecutor accused Blurton of a recent fabrication, an accusation which could not have been seriously made if the trial court had properly admitted the taped telephone conversations between Blurton and Mayfield. In that regard, the closing *513arguments served to exacerbate the error in excluding evidence critical to Blurton’s defense.
III. Jury Instructions
Blurton also argues the trial court erred in denying his request for a specific jury instruction and in issuing an improper instruction. We find no error.
The law to be charged is determined by the evidence presented at trial. State v. Gourdine, 322 S.C. 396, 472 S.E.2d 241 (1996). If the evidence supports a particular requested charge, the trial court commits reversible error by refusing to issue it. State v. Burriss, 334 S.C. 256, 513 S.E.2d 104 (1999).
In discussing jury instructions, Blurton requested an instruction on actual and apparent authority. The trial court declined the request and noted that it would, contrary to the request, instruct the jury that acting on the instructions of another is no defense. In its charge, the court stated:
Now, I tell you, the law is, if one committed a criminal act it is no defense to show that it was done under the instructions or orders from another. Likewise, it is no defense to a criminal act if it be shown that it was done in partnership or cooperation with another person.
Blurton objected to the instruction. On appeal, Blurton argues the trial court erred in refusing the requested charge and in charging the jury as it did.
The trial court correctly refused the requested instruction. Actual and apparent authority are principles of agency law rather than criminal law. However, even if these concepts could be used as a defense to criminal charges, Blurton did not establish sufficient evidence to require the requested charge. There is no evidence Mayfield had actual authority, as a Wal-Mart assistant manager or as a governmental official, to authorize Blurton to commit any of the alleged crimes.
“Apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe the principal consents to have the act done on his behalf by the person purporting to act for him.” *514Genovese v. Bergeron, 327 S.C. 567, 575, 490 S.E.2d 608, 612 (Ct.App.1997). Blurton presented no evidence of Mayfield’s apparent authority to permit these crimes. There was no evidence that either Wal-Mart or the CIA, acting as a principal, did any act which would have caused Blurton to believe Mayfield could authorize a real or “staged” robbery of the Wal-Mart store. Because the evidence did not require the requested charge, the court properly refused to issue it. See Dalon v. Golden Lanes, Inc., 320 S.C. 534, 540, 466 S.E.2d 368, 372 (Ct.App.1996) (citations omitted) (“It is the trial court’s function to charge the jury on the applicable law as raised by the pleadings and supported by the evidence. In order to warrant reversal for failure to give a requested charge, the refusal must be both erroneous and prejudicial.”).
Furthermore, the court’s charge that it is no defense that a person acted upon the instructions of, or in cooperation with, another person was proper. The instruction is a correct statement of the law and was triggered by Blurton’s testimony that he took money from Wal-Mart with Mayfield’s assistance and permission. See State v. Hurt, 212 S.C. 461, 48 S.E.2d 313 (1948) (it is no defense to a crime that others who are not on trial participated in the crime); 22 C.J.S. Criminal Law § 88 (1989) (Generally, the fact that one commits a crime on the advice or direction of another person is no defense to his commission of the crime.).
IV. Directed Verdict
Finally, Blurton argues the trial court erred in denying his directed verdict motion on the grand larceny charge. Specifically, he argues that double jeopardy prevents his conviction for both armed robbery, for taking the customer’s car keys, and grand larceny, for taking her car. Although Blurton moved for a directed verdict on the ground of insufficiency of the evidence after the State rested, he never argued to the trial court, as he does now, that he could not be convicted of both crimes. Because he failed to assert his double jeopardy argument at trial, the issue' is not preserved for direct appeal. See State v. Byram, 326 S.C. 107, 485 S.E.2d 360 (1997) (party may not argue one ground at trial and another on appeal); Medlock v. One 1985 Jeep Cherokee VIN 1JCWB7828FT129001, 322 S.C. 127, 470 S.E.2d 373 *515(1996) (double jeopardy issue must be raised to the trial court to be preserved for appellate review).
CONCLUSION
For the reasons discussed, Blurton’s appealed convictions are reversed and his case is remanded for a new trial.
REVERSED AND REMANDED.
GOOLSBY and SHULER, JJ., concur.
4.5 Notes and Questions (State v. Blurton) 4.5 Notes and Questions (State v. Blurton)
Notes & Questions
- The defense's case for Blurton rested on what is called a "failure of proof" argument. If Blurton genuinely believed the assistant manager's story, it would mean that the state failed to prove that he had the requisite mens rea. This kind of argument is helpful to the defense because the burden to prove each element of a crime beyond a reasonable doubt rests with the prosecution. Could an "insanity defense" or a showing of diminished mental capacity have also worked for Blurton? What evidence would he have needed to make such claims? Which defense (failure-of-proof vs. insanity vs. diminished capacity) strikes you as the best argument in Blurton's favor? Why?
- On a different note: Why should we let Blurton off the hook? Couldn't Blurton's stupidity in believing the Navy Seal-mastermind story easily have resulted in serious harm? What justifications for punishment might be relevant to consider as you answer this question?
- You are the prosecutor in this case. What, if anything, is the mastermind-assistant manager guilty of?
- Even as we continue to apply the legal framework of mens rea, it is important to keep in mind that these legal classifications rest on somewhat antiquated understandings of the human mind. The possibility that new developments in neuroscience might raise concerns about how criminal law understands volition and intent is actually a hotly debated issue within legal scholarship. Consider the following passage, for example:
Although the Model Penal Code brought much-needed clarity to the concepts of actus reus and mens rea, it has by no means solved the conceptual problems of what kinds of things should fall into the categories of volition, intent, and choice. For one thing, . . . both conscious, voluntary conduct (actus reus) and the various levels of intent (mens rea) require a reasoning process relating what the person perceives to be reality with the situation within which he must act (or not) and how. This reasoning, or imaginative process, may be greatly altered if the brain is not functioning correctly . . . . In other words, the law attempts to separate categories that are not really separable.
[T]he legal meaning of choice, intent, and volition originated, not from empirical studies about human brains and behavior, but from ungrounded beliefs about human nature. Despite a paradigm shift in understanding human behavior that has occurred through new developments in neurobiology, the law still operates on outdated nineteenth century assumptions about how human beings function. As a result, the categories into which some of these human actions belong are porous and indeterminate. The separate legal categories of actus reus and mens rea and their meanings reflect outdated assumptions about human nature and the objectives of criminal justice.
Erica Beecher-Monas and Edgar Garcia-Rill, Actus Reus, Mens Rea, and Brain Science: What Do Volition and Intent Really Mean? Kentucky Law Journal, 106: 265-314, 268 (2017). Entire article available at: https://uknowledge.uky.edu/klj/vol106/iss2/5.
4.6 People v. Conley 4.6 People v. Conley
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM J. CONLEY, Defendant-Appellant.
First District (3rd Division)
No. 1—86—2651
Opinion filed August 2, 1989.
*236Anna Ahronheim, of State Appellate Defender’s Office, of Chicago, for appellant.
*237Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Patricia Y. Brown, and Lauren Brown, Assistant State’s Attorneys, of counsel), for the People.
delivered the opinion of the court:
The defendant, William J. Conley, was charged with two counts of aggravated battery based on permanent disability and great bodily harm. (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4(a).) He was found guilty after a jury trial of aggravated battery based solely on permanent disability on July 17, 1986. The defendant’s motions for judgment notwithstanding the verdict or a new trial were denied, and the defendant was sentenced to 30 months’ probation including 40 days of periodic imprisonment. On appeal, it is contended that: (1) the State failed to prove beyond a reasonable doubt that the victim incurred a permanent disability and that the defendant intended to inflict a permanent disability; (2) the trial court erred in prohibiting the defense from asking a State identification witness to describe the offender during defendant’s case in chief; (3) the trial court erred in allowing the admission of evidence elicited during State cross-examination that defense witnesses failed to tell police that the offender was another individual; (4) the State’s use during cross-examination and in closing argument of defendant’s pretrial silence deprived the defendant of a fair trial; and (5) the trial court erred in prohibiting defense counsel from arguing to the jury that the victim had a financial motive in securing a verdict and in telling the jury that financial motive was not in issue. For the following reasons, we affirm.
The defendant was charged with aggravated battery in connection with a fight which occurred at a party on September 28, 1985, in unincorporated Orland Township. Approximately 200 high school students attended the party and paid admission to drink unlimited beer. One of those students, Sean O’Connell, attended the party with several friends. At some point during the party, Sean’s group was approached by a group of 20 boys who apparently thought that someone in Sean’s group had said something derogatory. Sean’s group denied making a statement and said they did not want any trouble. Shortly thereafter, Sean and his friends decided to leave and began walking toward their car which was parked a half block south of the party.
A group of people were walking toward the party from across the street when someone from that group shouted “There’s those guys from the party.” Someone emerged from that group and approached Sean, who had been walking with his friend Marty Carroll *23810 to 15 steps behind two other friends, Glen Mazurowski and Dan Scurio. That individual demanded that Marty give him a can of beer from his six-pack. Marty refused, and the individual struck Sean in the face with a wine bottle, causing Sean to fall to the ground. The offender attempted to hit Marty, but missed as Marty was able to duck. Sean sustained broken upper and lower jaws and four broken bones in the area between the bridge of his nose and the lower left cheek. Sean lost one tooth and had root canal surgery to reposition 10 teeth that had been damaged. Expert testimony revealed that Sean has a permanent condition called mucosal mouth and permanent partial numbness in one lip. The expert also testified that the life expectancy of the damaged teeth might be diminished by a third or a half.
At trial, the State presented Officer Houlihan, Doctor Arnold S. Morof, and five occurrence witnesses. Of the five occurrence witnesses, only Marty Carroll identified Conley as the offender. The only other witness connecting Conley to the crime was another student, Demetrius Kereakas, who testified that he saw Conley throw a bottle at Dan Scurio’s car as the four boys left after the incident. The defense recalled State witness Marty Carroll and presented seven witnesses in addition to the defendant. Four of the defense witnesses testified that the defendant was not the offender, but rather that Sean was hit by a Robert Frazer, who is known in school as “Crazy Bob” or “Terminator.” The party was held at a residence surrounded by open fields. There were no streetlights and most of the witnesses had been drinking before the incident.
At the end of the trial, the jury was furnished with four verdict forms for the two counts of aggravated battery. The jury returned a guilty verdict for aggravated battery based on permanent disability, failing to sign the remaining verdict forms. The State’s Attorney advised the trial judge that the jury had returned only one verdict but that he had no objections. The trial court accepted the verdict and discharged the jury. It must be noted here that when a verdict on less than all the counts is accepted by the trial court and the jury is discharged, the jury’s silence as to other counts is treated as an acquittal on those counts for purposes of double jeopardy. (People v. Thurman (1983), 120 Ill. App. 3d 975, 979, 458 N.E.2d 1038, aff’d in part and rev’d in part on other grounds (1984), 104 Ill. 2d 326, 472 N.E.2d 414; People v. Rollins (1982), 108 Ill. App. 3d 480, 485, 438 N.E.2d 1322.) Therefore, had this court found it necessary to reverse and remand for a new trial, the defendant could not have been retried for aggravated battery based on great bodily harm.
*239 The defendant initially contends on appeal that the State failed to prove beyond a reasonable doubt that Sean O’Connell incurred a permanent disability. Section 12 — 4(a) of the Criminal Code of 1961 provides that: “[a] person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.” (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4(a).) The defendant contends there must be some disabling effect for an aggravated battery conviction based on permanent disability. The defendant does not dispute that Sean lost a tooth or that surgery was required to repair damaged teeth. The defendant also does not dispute that Sean will have permanent partial numbness in one lip or suffer from a condition called mucosal mouth. The defendant maintains, however, that there is no evidence as to how these injuries are disabling because there was no testimony of any tasks that can no longer be performed as a result of these injuries.
The parties cite no Illinois decisions, nor have we found any, defining permanent disability in the context of aggravated, battery. The State relies on People v. Post (1982), 109 Ill. App. 3d 482, 440 N.E.2d 631, and People v. Hicks (1984), 101 Ill. 2d 366, 462 N.E.2d 473, for the proposition that loss of function is not required for a finding of permanent disability. In Post, the victim had been stabbed once in the back and three times in the leg, but incurred only permanent scarring. The court affirmed the defendant’s conviction for aggravated battery based on permanent disability. However, Post is not dispositive of the issue as the defendant was also convicted of aggravated battery based on great bodily harm and disfigurement, and the defendant never raised the issue of sufficiency of the evidence regarding permanent disability. In Hicks, a young girl received severe burns on her chest caused by boiling water. Hicks is also not dispositive of the issue as the defendant was convicted of heinous battery. Thus, as the defendant points out in his reply brief, this appears to be a question of first impression.
The function of the courts in construing statutes is to ascertain and give effect to the intent of the legislature. (People v. Steppan (1985), 105 Ill. 2d 310, 316, 473 N.E.2d 1300.) The starting point for this task is the language itself (People v. Boykin (1983), 94 Ill. 2d 138, 141, 455 N.E.2d 1174), and the language should be given its plain and ordinary meaning. (Steppan, 105 Ill. 2d at 317; People v. Pettit (1984), 101 Ill. 2d 309, 313, 461 N.E.2d 991.) The defendant urges the court to adopt the definition found in Webster’s Third New International Dictionary which defines disability as an “inability to do *240something.” The State refers to additional language from the same source that a disability is a “physical or mental illness, injury, or condition that incapacitates in any way.” (Webster’s Third New International Dictionary 642 (1986).) There is some support for defendant’s proposed definition in an old Illinois decision. In Dahlberg v. People (1907), 225 Ill. 485, 80 N.E. 310, a woman was convicted of assault with intent to commit mayhem (aggravated battery incorporates the earlier offense of mayhem) after she threw red pepper at someone’s eyes and missed, hitting an innocent bystander in the eyes instead. Her conviction was reversed because the crime of attempt requires that the offender employ adequate means to accomplish the attempted result, and the evidence revealed that blindness could not have resulted had she succeeded. (Dahlberg, 225 Ill. at 490.) Thus, by necessary implication, anything short of blindness would not have supported a conviction for mayhem.
In arriving at a definition, however, it is also proper to consider the statute’s purpose and the evils sought to be remedied. (Steppan, 105 Ill. 2d at 316.) The Committee Comment explains that section 12 — 4(a) incorporates the old offense of mayhem. (Ill. Ann. Stat., ch. 38, par. 12 — 4(a), Committee Comment at 465 (Smith-Hurd 1979).) At common law the offense of mayhem required the dismemberment or disablement of some bodily part. Initially, the law sought to protect the King’s right to the military services of his subjects. However, modern criminal codes have expanded their protection against a wider range of injuries. As one court explained:
“What, then, originated as the narrow common law offense of mayhem is generally today a statutory offense of considerably larger dimensions. The transition has been accompanied, if not induced, by a shift in emphasis from the military and combative effects of the injury to' the preservation of the human body in normal functioning. The statutory counterparts of non-statutory mayhem doubtless include all that the common law proscribed. But what is important now is not the victim’s capacity for attack or defense, but the integrity of his person.” (Emphasis added.) (United States v. Cook (D.C. Cir. 1972), 462 F.2d 301, 303.)
Under this view, it seems apparent that for an injury to be deemed disabling, all that must be shown is that the victim is no longer whole such that the injured bodily portion or part no longer serves the body in the same manner as it did before the injury. Applying this standard to the case at hand, the injuries Sean O’Connell suffered are sufficient to constitute a permanent disability. Sean will en*241dure permanent partial numbness in one lip and mucosal mouth.1 He lost one tooth and there is also a chance he may lose some teeth before attaining the age of seventy.
The defendant further argues that the State failed to prove beyond a reasonable doubt that he intended to inflict any permanent disability. The thrust of defendant’s argument is that under section 12 — 4(a), a person must intend to bring about the particular harm defined in the statute. The defendant asserts that while it may be inferred from his conduct that he intended to cause harm, it does not follow that he intended to cause permanent disability. The State contends it is not necessary that the defendant intended to bring about the particular injuries that resulted. The State maintains it met its burden by showing that the defendant intentionally struck Sean.
The law on this question is unclear. The defendant relies upon People v. Crosser (1983), 117 Ill. App. 3d 24, 27, 452 N.E.2d 857, and Bay State Insurance Co. v. Wilson (1982), 108 Ill. App. 3d 1096, 440 N.E.2d 131, which both hold that aggravated battery is a specific intent crime. The State, however, relies upon People v. Allen (1969), 117 Ill. App. 2d 20, 254 N.E.2d 103. In Allen, the court wrote that in committing the offense of aggravated battery, “the only mental state required is that the accused knowingly and intentionally cause the social harm defined in the statute, no premeditation or malice being necessary.” (Allen, 117 Ill. App. 2d at 27-28.) The court then went on to state that it is not necessary that the defendant intended to cause the particular injury which resulted. (Allen, 117 Ill. App. 2d at 28.) Resolution of this issue is made difficult as there exist inconsistent decisions within the first district. Allen is cited with approval by the third division in People v. Perry (1974), 19 Ill. App. 3d 254, 259, 311 N.E.2d 341; however, specific intent analysis is applied in another decision by the third division in People v. Farrell (1980), 89 Ill. App. 3d 262, 264-65, 411 N.E.2d 927. The fifth division has also produced inconsistent decisions. In People v. Gomez (1986), 141 Ill. App. 3d 935, 939, 491 N.E.2d 68, it was stated that aggravated battery is a specific intent crime. However, just the opposite was written in People v. Gvojic (1987), 160 Ill. App. 3d 1065, 1069, 513 N.E.2d 1083.
For proper resolution of this issue, it is best to return to the statutory language. Section 12 — 4(a) employs the terms “inten*242tionally or knowingly” to describe the required mental state. The relevant statutes state:
“4 — 4. Intent. A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 4.)
“4 — 5. Knowledge. A person knows or acts knowingly or with knowledge of:
(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5.)
Section 12 — 4(a) defines aggravated battery as the commission of a battery where the offender intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement. Because the offense is defined in terms of result, the State has the burden of proving beyond a reasonable doubt that the defendant either had a “conscious objective” to achieve the harm defined, or that the defendant was “consciously aware” that the harm defined was “practically certain to be caused by his conduct.” (See People v. Herr (1980), 87 Ill. App. 3d 819, 821, 409 N.E.2d 442.) This is the identical construction found in People v. Farrell (1980), 89 Ill. App. 3d 262, 264-65, 411 N.E.2d 927, which we conclude is the correct statement of the law.
Although the State must establish the specific intent to bring about great bodily harm, or permanent disability or disfigurement under section 12 — 4(a), problems of proof are alleviated to the extent that the ordinary presumption that one intends the natural and probable consequences of his actions shifts the burden of production, though not persuasion, to the defendant. (Farrell, 89 Ill. App. 3d at 265.) If the defendant presents evidence contrary to the presumption, then the presumption ceases to have effect, and the trier of fact considers all the evidence and the natural inferences drawn therefrom. (Farrell, 89 Ill. App. 3d at 265.) Intent can be inferred from the surrounding circumstances, the offender’s words, the weapon used, and the force of the blow. (See, e.g., Macklin v. Commonwealth Life & Accident Co. (1970), 121 Ill. App. 2d 119, 126-27, 257 N.E.2d 256.) As the defendant’s theory of the case was mistaken identity, there was no evidence introduced negating the presumption of intent. However, even if Conley had denied any intention to inflict permanent disability, the surrounding circumstances, the use of a bot-*243tie, the absence of warning and the force of the blow are facts from which the jury could reasonably infer the intent to cause permanent disability. Therefore, we find the evidence sufficient to support a finding of intent to cause permanent disability beyond a reasonable doubt.
The defendant next contends that the trial court improperly restricted the scope of his examination of State witness Marty Carroll during his case in chief. During the evening following the close of the prosecution’s case, Conley remembered having a conversation with Carroll at another party where Carroll allegedly made a statement inconsistent with his testimony. Advised of this development, the trial judge permitted the defendant to recall Carroll so that a foundation could be established for later impeachment when Conley testified. After a foundation had been laid, the trial court prohibited the defendant from pursuing an additional line of questioning when the State objected to questions asking Carroll to describe the offender.
The defendant’s argument assumes that People v. Aughinbaugh (1967), 36 Ill. 2d 320, 223 N.E.2d 117, and People v. Morris (1964), 30 Ill. 2d 406, 197 N.E.2d 433, are controlling. These decisions hold that where identification is a principal issue at trial, the defendant is entitled to wide latitude in conducting cross-examination of identification witnesses. These decisions, however, are limited to cross-examination during the State’s case in chief. It is well established in Illinois that the decision to recall a witness for further cross-examination after the close of the adversary’s case is within the sound discretion of the trial court. (People v. Smith (1986), 149 Ill. App. 3d 145, 152, 500 N.E.2d 605.) The trial court’s decision on this matter will not be reversed absent a clear abuse of discretion. (Smith, 149 Ill. App. 3d at 152.) In People v. Dorsey (1982), 109 Ill. App. 3d 218, 440 N.E.2d 394, the defendant argued that his right to due process was violated when the trial court denied his request to recall three witnesses for additional cross-examination in his case in chief. The court held that there was no abuse of discretion where the defendant had an opportunity to cross-examine the witnesses, the questions the defendant wished to ask could have been presented at defendant’s previous cross-examination during the State’s case, and the evidence the defendant hoped to introduce had little probative value. (Dorsey, 109 Ill. App. 3d at 229. See also People v. Lewis (1980), 89 Ill. App. 3d 840, 845, 412 N.E.2d 565.) Here, the defendant had an opportunity to cross-examine Marty Carroll during the State’s case and his questions regarding the offender’s description *244should have been presented at that time. Therefore, there was no abuse of discretion in prohibiting the defendant from pursuing this line of questioning.
Next, the defendant argues that the trial court erred in permitting improper impeachment of four defense witnesses. Matt Tanzer, Kevin McGinley, and Joseph Longhini testified they were present when Sean was hit and that Bob Frazer, and not the defendant, was the culprit. Scott Bucich testified that he observed the defendant in a different altercation not involving Sean. On cross-examination, the witnesses admitted they failed to volunteer this information to the police which may have exonerated the defendant. The defendant maintains that the trial court erroneously overruled his objections for lack of foundation because there was no showing that the police or other authority ever questioned these witnesses. The defendant relies on People v. Fabian (1976), 42 Ill. App. 3d 934, 356 N.E.2d 982, construing that decision to hold that a witness’ failure to volunteer knowledge of a murderer’s identity to police during earlier conversations was not impeaching because the police never inquired as to his ability to identify the offender. Defendant’s reliance on Fabian is misplaced, however, as the issue in Fabian was the weight, and not the admissibility, of the evidence in determining whether the defendant was proved guilty beyond a reasonable doubt. Fabian, 42 Ill. App. 3d at 938.
The rule for impeachment by omission is that it is permissible to use prior silence to discredit a witness’ testimony if: (1) it is shown that the witness had an opportunity to make a statement, and (2) under the circumstances, a person would normally have made the statement. (People v. McMath (1968), 104 Ill. App. 2d 302, 315, 244 N.E.2d 330, affd (1970), 45 Ill. 2d 33, 256 N.E.2d 835, cert. denied (1970), 400 U.S. 846, 27 L. Ed. 83, 91 S. Ct. 92.) At issue here is whether the State properly established the required evidentiary foundation for this impeachment. In People v. Taylor (1986), 141 Ill. App. 3d 839, 491 N.E.2d 3, two defense witnesses testified that the victim of a shooting had been shot by his own brother, and not by the defendant, when the brother fired a gun into a crowd during a street altercation. The witnesses admitted on cross-examination that they failed to go to the police with this information which may have exonerated the defendant. The court held this impeachment was proper because the witnesses, who were friends of the defendant, knew of the defendant’s arrest eight months before trial. (Taylor, 141 Ill. App. 3d at 845-46.) And in People v. Martinez (1979), 76 Ill. App. 3d 280, 284-85, 395 N.E.2d 86, this court ruled that a prosecu*245tor’s questions regarding a witness' failure to go to the police were permissible where the witness who was a friend of the accused waited eight months to tell his story supporting the defendant’s claim of self-defense. On the other hand, in People v. Watson (1981), 94 Ill. App. 3d 550, 557-58, 418 N.E.2d 1015, similar impeachment of an alibi witness was held improper for lack of foundation where the witness did not learn of the defendant’s alleged crime until five months after his arrest, and the State did not attempt to interview the witness despite receiving notice of defendant’s alibi defense. Read together, these decisions indicate that where a witness is a friend of the accused, and has had knowledge of the friend’s arrest before trial, evidence of the witness’ failure to give exculpatory information to the authorities is admissible to impeach an exculpatory story offered for the first time at trial. However, where the witness has not had sufficient notice, there must be evidence of other circumstances under which a reasonable person would have given exculpatory information to the authorities. For the case before us, resolution of this issue requires an examination of the pertinent testimony of each witness.
Matt Tanzer testified that he was a close friend of the defendant. Tanzer also testified that he had discussed the case with the defendant and other friends before trial. Although there was no testimony elicited on cross-examination as to how much time had elapsed before trial during which Tanzer knew of the defendant’s arrest, we do not believe this less than perfect examination to be reversible error. Thus, a sufficient foundation was established for impeaching Tanzer.
Joseph Longhini testified he had only known the defendant for less than a year and was not a close friend. However, Longhini also testified that he discussed the case with the defendant before trial and told him he would be available if the defendant needed him. Thus, a sufficient foundation was established.
Kevin McGinley testified that he was a close friend of the defendant. However, in addition to the absence of testimony indicating when he first learned of the defendant’s arrest, there was also no testimony that he had discussed the case with anyone. Moreover, no investigators for the police or the State ever questioned McGinley as to what he knew. Therefore, use of his prior silence was improper for lack of foundation.
Scott Bucich testified that he had known the defendant for a number of years. Bucich also testified that he discussed the case with the defendant before trial when the defendant called him to learn what Bucich knew of the incident. However, Bucich was a witness *246only to the defendant’s altercation with another individual named John O’Brien. Under these circumstances, a friend of the accused would not normally go to the police to volunteer information pertaining to a separate fight. Thus, the use of Bucich’s prior inaction was improper.
• 14, 15 Nonetheless, this court finds these errors to be harmless. Error is harmless where a reviewing court can safely conclude, after consideration of the totality of the evidence, that a trial without the error would not produce a different result. (People v. Warmack (1980), 83 Ill. 2d 112, 128-29, 413 N.E.2d 1254.) To say that the failure of McGinley and Bucich to volunteer information to the police affected the outcome of the case is speculative, especially in view of the fact that Tanzer and Longhini were properly impeached.
The fourth issue raised by the defendant is whether the State improperly used the defendant’s pretrial silence to impeach his mistaken identity theory in violation of the due process clause of the fourteenth amendment and Illinois evidentiary law. The State sought to discredit the mistaken identity theory as a recent fabrication since the defendant failed to inform the police about Bob Frazer, who the defendant claimed at trial to be the true offender. Examination of this issue must be in two parts as reference was made at trial to two separate occasions where the defendant did not inform the police of the identity of the individual claimed to be the true offender. We first address the State’s use of the defendant’s pre-arrest silence.
On October 7, Officer Houlihan visited Andrew High School and obtained permission to interview the defendant. Houlihan read the Miranda warnings to the defendant before proceeding with the interview. There was conflicting testimony as to what exactly the defendant had said during his interrogation at Andrew High School. Investigator Houlihan testified that Conley admitted to striking an individual he didn’t know with his fist and that the individual fell to the ground. The defendant, however, testified that he had told Houlihan that he fought an individual by the name of John O’Brien and that he gave a description of O’Brien to Houlihan. The defendant further testified that Houlihan stated he had a report of only one fight involving Sean O’Connell and asked him why his fight had not been reported. Conley responded that he didn’t know but that it probably was not reported because no one was hurt. Nevertheless, it is clear that Conley never mentioned the name of Bob Frazer to Houlihan when questioned about his activities at the party and that this fact was elicited during his cross-examination. The record reveals the following colloquy:
*247“Q. And so you saw Marty Carroll at the second Sandora party that you made?
A. Yes, I did.
Q. And he was pointing a finger at you?
A. He sure did.
Q. He said, ‘That’s the guy who hit Shawn with the bottle.’
A. Yes.
Q. You said to him, ‘It wasn’t me. I know who did it.’ Didn’t you say that?
A. Yes, I did.
Q. And you told Officer Houlihan who that was, didn’t you?
A. No, I did not tell him.
Q. I have nothing further.”
The defendant did not object to the State’s question because he felt that his silence could be adequately explained. On redirect, the defendant testified that he had not learned of Bob Frazer until two to three weeks after his interview with Houlihan. The defendant now argues that the State’s use of this silence was improper under Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. In Doyle v. Ohio, the United States Supreme Court held that use of a defendant’s post-arrest silence to impeach his exculpatory testimony offered for the first time at trial is a deprivation of due process of law. (Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.) The court reasoned that silence following recitation of the Miranda warnings may be nothing more than the arrestee’s exercise of those rights and, therefore, post-arrest silence is always “insolubly ambiguous.” (Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244.) The Court further reasoned that implicit in the Miranda warnings is the promise that silence will carry no penalty should the accused invoke that right. (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.) Therefore, the Court concluded that it would be fundamentally unfair to permit use of such silence against the accused after inducing him to remain silent. (Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245.) Because Conley was successfully rehabilitated on redirect (cf. United States v. Wilkins (7th Cir. 1981), 659 F.2d 769, 776), we conclude that if the State’s use of Conley’s pre-arrest silence violated Doyle, such error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.
• 17 Following redirect, however, the State again sought to impeach the defendant’s mistaken identity theory on recross, using the defendant’s post-arrest silence. On October 16, nine days after his in*248terview with Houlihan, the defendant participated in a lineup. At the conclusion of the lineup, the defendant was placed under arrest at which time no statements were made. The record does not reveal whether the defendant was advised of his Miranda rights, but it appears that Conley was not so advised immediately upon his arrest. Following the defendant’s rehabilitation on redirect, the State countered on recross with a reference to the defendant’s silence following his arrest. The record reveals the following colloquy:
“Q. You saw Houlihan on October the 16th, didn’t you?
A. I believe that was the date for the line-up. I’m not sure.
Q. And after the lineup, that’s when Officer Houlihan told you you’re under arrest, isn’t that right?
A. I believe so.
Q. And at that time you didn’t tell officer — .
DEFENSE COUNSEL: I’m objecting now.
THE COURT: Sustained.
PROSECUTOR: I have nothing further, Judge.”
The State contends, first, that its reference to Conley’s post-arrest silence did not deprive him of due process because he had not been advised of his Miranda rights upon arrest. The State relies upon Fletcher v. Weir (1982), 455 U.S. 603, 71 L. Ed. 2d 490, 102 S. Ct. 1309, which held that cross-examination as to post-arrest silence is permissible where such silence has not been induced by the governmental assurances embodied in the Miranda warnings. (Fletcher, 455 U.S. at 607, 71 L. Ed. 2d at 494, 102 S. Ct. at 1312.) The State also contends there was no “use” of silence because the State was prevented from completing the question when the trial court sustained the defendant’s objection, and the jury was instructed to disregard questions to which objections were sustained. (See Greer v. Miller (1987), 483 U.S. 756, 97 L. Ed. 2d 618, 107 S. Ct. 3102.) The defendant argues, however, that Fletcher is inapplicable because he had been advised of his Miranda rights nine days before his arrest at the October 7 interview. The defendant further contends that Greer v. Miller is inapposite because, unlike Greer, the trial court failed to immediately admonish the jury after sustaining his objection, and the prosecutor defied the trial court by mentioning the defendant’s silence in rebuttal argument. On the other hand, the defendant contends that the State’s inquiry into his post-arrest silence is in violation of Illinois evidentiary law even if he has not been deprived of due process. (See People v. McMullin (1985), 138 Ill. App. 3d 872, 486 N.E.2d 412.) Because Doyle establishes only a minimum constitutional threshold for fairness under the due process clause, each juris*249diction is free to define for itself when silence is more probative than prejudicial under its rules of evidence. (See Jenkins v. Anderson (1980), 447 U.S. 231, 240, 65 L. Ed. 2d 86, 96, 100 S. Ct. 2124, 2130.) The defendant’s silence was not admitted into evidence, however, as the trial court sustained the defendant’s objection. Thus, the defendant’s argument on this point is without merit.
We decline to hold that the Miranda warnings Conley received at the October 7 interrogation induced him to remain silent upon his arrest nine days later. Initially, we note that had Conley made incriminating statements during a second interrogation following arrest without being advised of his Miranda rights, Conley would be taking a position contrary to the one he advocates here— that is, Conley would be arguing that the Miranda warnings given nine days earlier are insufficient. (See People v. Rosario (1972), 4 Ill. App. 3d 642, 645-46, 281 N.E.2d 714.) Moreover, Conley agreed to talk with Officer Houlihan on October 7. If the Miranda warnings did not induce him to remain silent on October 7, then we cannot say those same warnings induced him to remain silent nine days later. Therefore, on the facts presented here, we do not believe Doyle applies.
Nonetheless, we further find that there was no “use” of the defendant’s post-arrest silence. In Greer v. Miller, the Supreme Court stated it was significant that in each of the cases in which it applied Doyle, the trial court had “permitted specific inquiry or argument respecting the defendant’s post-Miranda silence.” (Greer v. Miller, 483 U.S. at 764, 97 L. Ed. 2d at 629, 107 S. Ct. at 3108.) The Court concluded there was no Doyle violation because the trial court sustained the defendant’s objection, no further comments were made during the remainder of the trial, and the trial court instructed the jury to disregard questions to which objections were sustained. (Greer, 483 U.S. at 764, 97 L. Ed. 2d at 629, 107 S. Ct. at 3108.) Here, the trial court did not permit specific inquiry or argument. As in Greer, Conley’s objection was sustained. The jury was also instructed to disregard questions to which objections were sustained, and unlike Greer, the question posited to Conley was never completed. As to the prosecutor’s comment during rebuttal argument, the trial court sustained Conley’s objection and, thus, argument respecting Conley’s silence was not permitted.
The defendant distinguishes Greer on the ground that the trial court here did not admonish the jury after sustaining his objection. A careful reading of Greer reveals, however, that the admonishment referred to by the defendant was only a direction to “ignore [the] ques*250tion for the time being.” (Greer, 483 U.S. at 759, 97 L. Ed. 2d at 626, 107 S. Ct. at 3105.) No specific instruction was given. Further, as in Greer, Conley failed to request the trial court to give a specific instruction. (Greer, 483 U.S. at 764 n.5, 97 L. Ed. 2d at 629 n.5, 107 S. Ct. at 3108 n.5.) Therefore, we hold there was no specific inquiry or argument respecting Conley’s silence.
The defendant’s fifth and final contention is that he was improperly precluded from arguing to the jury that Sean’s family had a financial motive in securing a verdict due to the extensive dental work that had been performed. The defendant was attempting to discredit the credibility of State witness Demetrius Kereakas, who had testified that he identified Conley from a picture in an Andrew High School yearbook. The testimony revealed that Mr. O’Connell had visited Demetrius at Richards High School where Mr. O’Connell had given Demetrius the yearbook. The defendant argues that Kereakas’ credibility is suspect because no one besides Mr. O’Connell was present when Kereakas made the identification, and Mr. O’Connell may have pressured Kereakas into picking Conley.
Closing argument must be based on the evidence or on the reasonable inferences drawn therefrom. (People v. Bullock (1987), 154 Ill. App. 3d 266, 273, 507 N.E.2d 44.) The defendant correctly states that financial bias is a legitimate method of impeaching the credibility of a witness. (People v. Thompson (1979), 75 Ill. App. 3d 901, 903, 394 N.E.2d 422, 425.) Here, however, the individual with the alleged financial bias is Mr. O’Connell, who did not testify. Demetrius Kereakas has no financial interest, and Mr. O’Connell’s bias cannot be transferred to Kereakas. There was no evidence that Mr. O’Connell pressured Kereakas or engaged in suggestive conduct which could have led Kereakas to Conley’s photograph. Therefore, the trial court properly sustained the State’s objection to the defendant’s remarks.
The judgment of the circuit court is affirmed.
Judgment affirmed.
FREEMAN, P.J., and WHITE, J., concur.
4.7 Notes and Questions (People v. Conley) 4.7 Notes and Questions (People v. Conley)
Notes & Questions
-
The operative statute in Conley required a mens rea of "intentionally or knowingly" causing "great bodily harm." (see paragraph 10). Given such statutory language, would it have been an easier/faster decision for the court if it had simply focused on the word "knowingly" instead? See the definitions in paragraphs 19-21 as you consider this question. Next, consider the facts of this case under the Model Penal Code: Would Conley be guilty of "purposefully" or "knowingly" causing great bodily harm?
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Reconsider Blurton in light of this case. Would it be reasonable for a jury to infer that Blurton intended/knew the natural and probable consequences of his actions? In other words, if we applied the law from Conley to Blurton, what result? (Note: when we use the word "law" in this context, we mean the holding of the case. "Law" can mean statute, opinion, regulation, or any other legal authority that is relevant.)
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Essentially, Conley held that it is reasonable to infer that all the natural and probable consequences of an action were "intended" by the actor. Such an inference may not seem extreme when one swings a bottle at close range at someone's face. But consider the potential limitlessness of the court's logic. Would it make sense to apply this rule to less obvious instances as well? Consider someone cutting off a car in traffic, resulting in an accident. We could say the injuries from the accident were natural and probable consequences of bad driving--but did the bad driver intend the result? What would be some reasonable factual scenarios where it would make sense to apply the Conley rule?
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Conley also introduces us to the concept of transferred intent, which rests on the theory that "the state of mind which one has when about to commit a crime upon one person is considered by the law to exist and to be equally applicable although the intended act affects another person." Wilfred J. Ritz, Felony Murder, Transferred Intent, And The Palsgraf Doctrine In The Criminal Law, 16 Wash. & Lee L. Rev. 169 (1959)(quoting from 1 Burdick, Law of Crime 149 (1946)).
-
The treatment of transferred intent in the Model Penal Code can be found in section 2.03(2), reproduced below. Identify the phrases that pay for transferred intent.
MPC SECTION 2.03(2)
When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless:
(a) the actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or
(b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of his offense.
-
Consider the following problems--what result under Conley? Under the MPC?
(i) A fires a gun at B, intending to kill B. A misses B, killing C by accident. Did A kill C purposely, knowingly, recklessly or negligently?
(ii) A fires a gun at B, intending to kill B. It ricochets, killing both B and C. With what state of mind did A kill C?
4.8 State v. Nations 4.8 State v. Nations
STATE of Missouri, Respondent, v. Sandra J. NATIONS, Appellant.
No. 45349.
Missouri Court of Appeals, Eastern District, Division One.
Aug. 28, 1984.
*283Harvey I. Feldman, Clayton, for appellant.
George R. Westfall, Pros. Atty. by James E. Baker, Asst. Pros. Atty., Clayton, for respondent.
Defendant, Sandra Nations, owns and operates the Main Street Disco, in which police officers found a scantily clad sixteen year old girl “dancing” for “tips”. Consequently, defendant was charged with endangering the welfare of a child “less than seventeen years old,” § 568.050 RSMo 1978.1 Defendant was convicted and fined $1,000.00. Defendant appeals. We reverse.
Defendant contends the state failed to make a submissible case. Defendant failed to preserve this issue for review on appeal.2 We must, however, consider the issue of submissibility under the doctrine of plain error. It is manifest injustice for a trial court to submit a case to the fact finder on evidence insufficient to make a submissible case. E.g., State v. Russell, 581 S.W.2d 61, 63 (Mo.App.1979).
Specifically, defendant argues the state failed to show she knew the child was under seventeen and, therefore, failed to show she had the requisite intent to endanger the welfare of a child “less than seventeen years old.” We agree.
The pertinent part of § 568.050 provides:
“1. A person commits the crime of endangering the welfare of a child if:
(2) He knowingly encourages, aids or causes a child less than seventeen years old to engage in any conduct which causes or tends to cause the child to come within the provisions of subdivision (l)(c) .. of section 211.031, RSMo ....”
The reference to “subdivision (l)(c)” is to § 211.031.l(l)(c) RSMo (Supp. 1976), which was in effect when § 568.050 was enacted. This “subdivision” vested in the juvenile court exclusive original jurisdiction of any proceeding in which a child is alleged to be in need of care and treatment because “[t]he behavior, environment or associations of the child are injurious to his welfare or to the welfare of others”.3 *284Thus, § 568.050 requires the state to prove the defendant “knowingly” encouraged a child “less than seventeen years old” to engage in conduct tending to injure the child’s welfare, and “knowing” the child to be less than seventeen is a material element of the crime. See § 562.021.
“Knowingly” is a term of art, whose meaning is limited to the definition given to it by our present Criminal Code. Literally read, the Code defines “knowingly” as actual knowledge — “A person ‘acts knowingly’, or with knowledge, (1) with respect ... to attendant circumstances when he is aware ... that those circumstances exist _” (Emphasis original). § 562.016.3.4 So read, this definition of “knowingly” or “knowledge” excludes those cases in which “the fact [in issue] would have been known had not the person wilfully ‘shut his eyes’ in order to avoid knowing.” Perkins, Criminal Law 942 (2d ed. 1969). The Model Penal Code, the source of our Criminal Code, does not ex-elude these cases from its definition of “knowingly”. Instead, the Model Penal Code proposes that “[w]hen knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence_” (Emphasis added). Model Penal Code § 2.02(7) (Proposed Official Draft 1962). This definition sounds more like a restatement of the definition of “recklessly” than “knowingly”.5 The similarity is intentional. The Model Penal Code simply proposes that wilful blindness to a fact “be viewed as one of acting knowingly when what is involved is a matter of existing fact, but not when what is involved is the result of the defendant’s conduct, necessarily a matter of the future at the time of acting.” 6 Thus, as noted, the Model Penal Code proposes that “[w]hen knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence *285Model Penal Code § 2.02(7) (Proposed Official Draft 1962).
Our legislature, however, did not enact this proposed definition of “knowingly”. Although the definitions of “knowingly” and “recklessly” in our Criminal Code are almost identical to the primary definitions of these terms as proposed in the Model Penal Code, see Model Penal Code § 2.02(2)(b)-(c) (Proposed Official Draft 1962), the Model Penal Code’s proposed expanded definition of “knowingly”, encompassing wilful blindness of a fact, is absent from our Criminal Code. The sensible, if not compelling, inference is that our legislature rejected the expansion of the definition of “knowingly” to include wilful blindness of a fact and chose to limit the definition of “knowingly” to actual knowledge of the fact.7 Thus, in the instant case, the state’s burden was to show defendant actually was aware the child was under seventeen, a heavier burden than showing there was a “high probability” that defendant was aware the child was under seventeen. In short, the state’s burden was to prove defendant acted “knowingly”, not just “recklessly”. The state proved, however, that defendant acted “recklessly”, not “knowingly”. This we conclude from our review of the record.
In our review of the record, we do not weigh the evidence; rather, we simply determine whether there was sufficient proof for the fact finder to find the defendant guilty beyond a reasonable doubt. E.g., State v. Turner, 623 S.W.2d 4, 6 (Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982). In so doing, we consider only those facts and reasonable inferences favorable to the state. E.g., State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).
The record shows that, at the time of the incident, the child was sixteen years old. When the police arrived, the child was “dancing” on stage for “tips” with another female. The police watched her dance for some five to seven minutes before approaching defendant in the service area of the bar. Believing that one of the girls appeared to be “young,” the police questioned defendant about the child’s age. Defendant told them that both girls were of legal age and that she had checked the girls’ identification when she hired them. When the police questioned the child, she initially stated that she was eighteen but later admitted that she was only sixteen. She had no identification.
Aside from the child’s age, these facts were established by the testimony of a police officer. The state also called the child as a witness. Her testimony was no help to the state. She testified the defendant asked her for identification just prior to the police arriving, and she was merely crossing the stage to get her identification when the police took her into custody.8 Nor can the state secure help from the defendant’s testimony. She simply corroborated the child’s testimony; i.e., she asked the child for her identification; the child replied she would “show it to [her] in a minute”; the police then took the child into custody.
These facts simply show defendant was untruthful. Defendant could not have checked the child’s identification, because the child had no identification with her that day, the first day defendant “hired” the child. This does not prove that defendant knew the child was less than seventeen years old. At best, it proves defendant did not know or refused to learn'the child’s age. The latter is the best case for the state. But defendant’s refusal to learn the age of this “young” child who was “dancing” “scantily clad” in her disco bar simply proves that defendant was “aware of a *286high probability” that the child was under seventeen, or, stated otherwise, in the definitional language of our Criminal Code, proves that defendant was conscious of “a substantial and unjustifiable risk” that the child was under seventeen and that defendant’s disregard of the risk was a “gross deviation” from the norm. See § 562.016.-4. This, however, is not “knowledge” under our Criminal Code. It is “recklessness”, nothing more. Having failed to prove defendant knew the child’s age was less than seventeen, the state failed to make a submissible case.9
Judgment reversed.
SIMON, P.J., and KAROHL, J., concur.
4.9 Notes and Questions (State v. Nations; Mens Rea, generally) 4.9 Notes and Questions (State v. Nations; Mens Rea, generally)
Notes & Questions
- How reasonable was Nations's ignorance regarding the dancers' age? Should she have been charged with having had "inquiry notice" at least? Do you think the statute reduces the harm that prompted the statute's enactment if only "actual knowledge" is criminalized?
- On the other hand, rates of conviction and subsequent incarceration would certainly rise if a lesser mens rea would suffice for conviction. Is overcarceration a price we are willing to pay considering the harm to minors in this context? Are there other crimes for which we would (or not) be willing to take such risks? How might we balance these divergent policy goals?
- Because individual and subjective biases play into how we estimate characteristics like age, is there always a risk that some minors tend to be more protected than others? For example, social workers, police, and various non-family caregiving adults tend to see black children as less innocent and in need of protection than white children. With that in mind, what should be the right standard for knowledge within the factual scenario of Nations?
- As you saw in this case, a legislature might adopt MPC language in its entirety or choose to adopt it partially or in piecemeal. Can we assume that the legislature meant to adopt the MPC framework even if it didn't adopt all of the MPC's language, or was this a deliberate choice? In Nations, does the court assume that actual knowledge was a deliberate move or an oversight? Contrast this case with how Morissette (below) addresses the same question regarding statutory construction.
One way to clarify this legislative intent, of course, is to pore over the documents (earlier versions of bills, committee notes, transcripts, etc.) leading up to the legislation. When should a court pay attention to legislative intent to aid its statutory construction? - MENS REA PROBLEMS
PROBLEM 1:
Hypo: Jane runs a business buying and reselling used goods on eBay. She recently bought 5 laptop computers with “Property of Santa Clara University” stickers on the backs.
Consider the consequences of her actions under these statutes:
California Penal Code sec.496 “Receiving Stolen Property”
Every person who buys or receives any property that has been stolen…, knowing the property to be so stolen or obtained, shall be punished by imprisonment in a county jail for not more than one year, …
California Penal Code section 2-24-7-1:
The word "knowingly" imports only a knowledge that the facts exist which bring the act or omission within the provisions of this code. It does not require any knowledge of the unlawfulness of such act or omission.
1) Is she guilty of Receiving Stolen Property if, suspecting they were stolen, she decides not to resell the laptops?
2) Is she guilty of Receiving Stolen Property if the seller told her (and she believed him) that the laptops were discarded in a campus trash bin?
3) Is she guilty of Receiving Stolen Property if she decided not to unpack and examine the laptops prior to reselling them because the price was so low?
4) What result under the same facts if California adopted 2.02(7)?
PROBLEM 2: D is a nurse in a nursing home in an MPC state. After months of sheltering in place, he decides he can’t stand the isolation, and he attends a wild indoor dance party. Unlike most of the guests, who didn’t wear masks, D wore his mask except when he needed to kiss someone. D returns to work the following week, and later tests positive for Covid-19. Then, a week later, one of D’s patients tests positive for the virus.
D is charged with Felony Transmission of a Communicable Disease:
A person commits a class “D” felony when the person is reckless as to whether they have a contagious or infectious disease and exposes an uninfected person to the contagious or infectious disease acting with a reckless disregard as to whether the uninfected person contracts the contagious or infectious disease, and the conduct results in the uninfected person becoming infected with the contagious or infectious disease.
Which of the following is false, and why?
1) D will be found guilty if the failure to recognize the risk he posed was a gross deviation from the standard of care that a reasonable person would have exercised.
2) D will be found guilty if the evidence shows D consciously disregarded the risk that he had been infected.
3) D will be found not guilty if it turns out the patient caught the virus from someone else.
4) D will be found not guilty if D had no idea that one could transmit Covid-19 while wearing personal protective equipment (PPE)
PROBLEM 3: D intends to poison her estranged spouse, who now lives with his girlfriend. She places poison gas in his car, and both he and the girlfriend die. How many counts of first-degree murder can Arizona bring against D?
e.g. Arizona law: 13-1105. First degree murder; classification
A person commits first degree murder if…the person causes the death of another person, with premeditation...
Different result under MPC (see 2.03(2), (a) and (b))?PROBLEM 4: D robs bank, and a security guard chases him out, grabbing the car, and holding onto it as D drives away. D guns the engine and swerves, trying to frighten the guard into letting go. The guard falls off and is run over by another car, which kills him instantly.
In MPC-land, is D guilty of Murder 210.2 or Manslaughter 210.3?
PROBLEMS 5-8
Use the following criminal statutes to determine what crimes, if any, might apply to the hypotheticals posed below
S 140.17 Criminal trespass in the first degree.A person is guilty of criminal trespass in the first degree when he knowingly enters or remains unlawfully in a building that is the property of another.
S 140.10 Theft
A person is guilty of theft if he unlawfully takes the property of another with the purpose to deprive him thereof.
S 140.20 Burglary in the third degree.
A person is guilty of burglary in the third degree when he knowingly enters a building with intent to commit a crime therein.
S 140.25 Burglary in the second degree.
A person is guilty of burglary in the second degree when he knowingly enters a building with intent to commit a crime therein, and when:
- In effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime is armed with explosives or a deadly weapon;
or
- The building is a dwelling.
S 140.35 Possession of burglar’s tools.A person is guilty of possession of burglar`s tools when he possesses any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving forcible entry into premises, … under circumstances evincing an intent to use or knowledge that some person intends to use the same in the commission of an offense of such character.
Problem 5:
Sam has agreed to feed his friend's dog when she is away. Forgetting the address of her house, he enters a stranger's house by mistake. Looking around and seeing some money lying on a table, he takes it and leaves.
Problem 6:
Fred, looking for something of value to steal, breaks into what he takes to be an uninhabited house under construction and starts looking around. He is surprised to find Owen, the owner, living there.
Problem 7:
Bored one night, Jane and his schoolmate Larry break into the local mall at night, as they later say, "just for kicks." But unknown to Jane, Larry has placed explosives in Jane's backpack.
Problem 8:
Mags is holding a crowbar, and says to an undercover officer, "here's what my buddy Jack uses when he's short on cash." When arrested, Mags says, "How can I be charged -- who knew that holding a crowbar was a crime?"
4.10 State v. Miles 4.10 State v. Miles
State v. Miles
South Carolina Court of Appeals
421 S.C. 154, 805 S.E.2d 204
Appellate Case No. 2015-000308; Opinion No. 5511
2017-08-23
Appellate Defender John Harrison Strom, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General Megan Harrigan Jameson, Assistant Deputy Attorney General David A. Spencer, all of Columbia; and Solicitor Samuel R. Hubbard, III, of Lexington, for Respondent.
HILL, J.:
Lance L. Miles appeals his conviction for trafficking in illegal drugs in violation of section 44-53-370(e)(3) of the South Carolina Code (Supp. 2016). He argues the trial court erred by: (1) instructing the jury, in reply to a question they posed during deliberation, that the State did not have to prove Miles knew the drugs were oxycodone; (2) denying his directed verdict motion; and (3) admitting three statements he contends were obtained in violation of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We affirm.
I.
While scanning parcels for illegal drugs at the Federal Express office in West Columbia, agents from the Lexington County Sheriff's Office became suspicious of a package. They arranged for a controlled delivery to the listed address, which was within an apartment complex. Surveilling the delivery, they observed the delivery person ring the doorbell and leave the package by the front door. A few moments later, an agent noticed Miles exit a nearby apartment and begin walking around the parking lot. The agent then saw a young female emerge from the delivery address. She looked at the box, got on her phone, quickly hung up and went back inside. Miles then got on his phone while walking towards the box. Miles picked up the box and started back to his apartment. Seeing the agents advancing to intercept him, he tried to ditch the box. The agents apprehended and handcuffed him.
Agent Edmonson immediately questioned Miles about the contents of the box. Miles claimed he did not know what was inside. Edmonson then asked if there were drugs inside the box; Miles responded there probably were, but he did not know what kind. At this point, Edmonson read Miles his Mirandarights and asked Miles again whether there were drugs in the box. Miles again responded the box could contain drugs, but he did not know what kind. Upon obtaining a search warrant and Miles' consent, the agents opened the box and discovered three hundred pills that a chemist later testified contained a total of nine grams of oxycodone. Edmonson next asked Miles to write down everything he knew about the box and the drugs. Edmonson then reread Miles his Miranda rights, and Miles wrote a statement admitting he had been paid one hundred dollars to pick up the box, someone named "Mark" had called him to pick it up, and the "owner" was a "Stacks" from Tennessee.Edmonson then wrote out two questions. First, "Did you know drugs are in the parcel ‘box’?" Miles wrote, "Yes." The second question and answer—related to Miles' admission that he had previously picked up packages for money—were redacted and not presented to the jury.
Miles was indicted for trafficking in illegal drugs, in violation of section 44-53-370(e)(3). He did not testify at his trial and moved unsuccessfully for directed verdict, arguing in part there was insufficient evidence he knew the box contained oxycodone. During the jury charge, the trial court gave the following instruction:
Mr. Miles is charged with trafficking in illegal drugs and in this case we are referring to [o]xycodone. The State must prove beyond a reasonable doubt that the Defendant knowingly delivered, purchased, brought into this state, provided financial assistance or otherwise aided, abetted, attempted or conspired to sell, deliver, purchase, or bring into this state and was knowingly in actual or constructive possession or knowingly attempted to become in actual or constructive pos[session] of the [o]xycodone. Possession may be either ... actual or constructive.
The trial court charged that the State bore the burden of proving the amount of oxycodone was more than four grams. The trial court further instructed that the State had to prove criminal intent, which required a "conscious wrongdoing," and that intent may be inferred from the conduct of the parties and other circumstances. After deliberating for some time, the jury asked the following question: "Does the [S]tate have to prove that the defendant knowingly brought into the state four grams or more of [o]xycodone or just any amount of illegal drugs in order to consider this trafficking?"
The trial court, over Miles' objection, replied to the jury as follows:
[T]he law in South Carolina is the State does not have to prove that the Defendant knew that the drugs in the package were [o]xycodone, just that he knew that the package contained illegal drugs. However, the State does have to prove beyond a reasonable doubt that the illegal drugs that were in the package w[ere] more than four grams of [o]xycodone.
The jury later returned with a verdict of guilty. Because Miles had at least two prior drug convictions, he was sentenced to the mandatory minimum term of twenty-five years, and ordered to pay a $100,000 fine.
II.
Miles' primary argument on appeal is the trial court's supplemental charge misinformed the jury that the State did not need to prove beyond a reasonable doubt that Miles knew the drug he possessed was oxycodone. We review jury instructions to determine whether they, as a whole, adequately communicate the law in light of the issues and evidence presented at trial. State v. Logan , 405 S.C. 83, 90, 747 S.E.2d 444, 448 (2013).
Section 44-53-370(e)(3) provides in part:
Any person who knowingly sells, manufactures, cultivates, delivers, purchases, or brings into this State, or who provides financial assistance or otherwise aids, abets, attempts, or conspires to sell, manufacture, cultivate, deliver, purchase, or bring into this State, or who is knowingly in actual or constructive possession or who knowingly attempts to become in actual or constructive possession of: ... four grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or 44-53-210, or four grams or more of any mixture containing any of these substances, is guilty of a felony which is known as "trafficking in illegal drugs"....
(emphases added).
Miles contends the term "knowingly" as used in subsection (e) applies to each element of the trafficking offense, including the specific type of drugs listed in (e)(3). The issue of whether trafficking requires proof that the defendant not only knowingly intended to "sell[ ], manufacture [ ], cultivate[ ] ..." or "posses[ ]" illegal drugs, but also had knowledge of the precise identity of the illegal drug being trafficked, has, surprisingly, never been addressed by our appellate courts.We are mindful that "statutory interpretation begins (and often ends) with the text of the statute in question. Absent an ambiguity, there is nothing for a court to construe, that is, a court should not look beyond the statutory text to discern its meaning." Smith v. Tiffany , 419 S.C. 548, 555–56, 799 S.E.2d 479, 483 (2017) (citations omitted).
Courts grapple often with that tricky adverb "knowingly." In United States v. Jones , 471 F.3d 535, 538 (4th Cir. 2006), the court construed a federal statute that punished "[a] person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce ... with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense." (quoting 18 U.S.C. § 2423(a) (2000 & Supp. 2003) ). Rejecting the argument that the government was required to prove the defendant knew the person transported was a minor, Judge Wilkinson noted:
[C]onstruction of the statute demonstrates that it does not require proof of the defendant's knowledge of the victim's minority. It is clear from the grammatical structure of § 2423(a) that the adverb "knowingly" modifies the verb "transports." Adverbs generally modify verbs, and the thought that they would typically modify the infinite hereafters of statutory sentences would cause grammarians to recoil. We see nothing on the face of this statute to suggest that the modifying force of "knowingly" extends beyond the verb to other components of the offense.
Id. at 539.
The United States Supreme Court has not been so gun-shy about the adverb. They ordinarily read a "statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element." Flores-Figueroa v. Unit ed States , 556 U.S. 646, 652, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009). They have also found "the word ‘knowingly’ applies not just to the statute's verbs but also to the object of those verbs." McFadden v. United States , ––– U.S. ––––, 135 S.Ct. 2298, 2304, 192 L.Ed.2d 260 (2015).
We suspect the bar for causing grammarians to recoil is low.
But the Court has not gone so far as to hold that a criminal statute that opens with "knowingly" invariably requires each element be proven by that level of intent. It is commonplace that "different elements of the same offense can require different mental states." Staples v. United States , 511 U.S. 600, 609, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). Even in Flores-Figueroa , the Court acknowledged that "knowingly" does not always modify every element, particularly where the statutory sentences at issue "involve special contexts or ... background circumstances that call for such a reading." 556 U.S. at 652, 129 S.Ct. 1886. The Court emphasized that "the inquiry into a sentence's meaning is a contextual one." Id. ; see also Avis Rent A Car Sys., Inc. v. Hertz Corp. , 782 F.2d 381, 385 (2d Cir. 1986) ("Fundamental to any task of interpretation is the principle that text must yield to context.") (Friendly, J.).
Our duty is to determine legislative intent, and the text of the statute is often the best evidence of that intent. Hodges v. Rainey , 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). Yet the text "must be construed in context and in light of the intended purpose of the statute in a manner which harmonizes with its subject matter and accords with its general purpose." Cabiness v. Town of James Island, 393 S.C. 176, 192, 712 S.E.2d 416, 425 (2011) (citation and internal quotations omitted).
We find that by using "knowingly" in subsection (e), the Legislature did not intend to require the State to prove a defendant knew the specific type of illegal drug he was trafficking. Section 44-53-370 is concerned with criminalizing numerous forms of conduct involving illegal drugs. Thus, subsection (c) decrees "[i]t shall be unlawful for any person knowingly or intentionally to possess a controlled substance," subject to certain exceptions not relevant here. S.C. Code Ann. § 44-53-370(c) (Supp. 2016). Our supreme court has held the language now codified in subsection (c) requires the State to prove beyond a reasonable doubt that the defendant knew he possessed a "controlled substance." State v. Attardo , 263 S.C. 546, 549, 211 S.E.2d 868, 869 (1975). Subsection (d) then sets forth the penalties for possession based on the type of controlled substance. S.C. Code Ann. § 44-53-370(d) (Supp. 2016).
This brings us to trafficking, subsection (e). Tellingly, our supreme court has explained "[i]t is the amount of [the controlled substance], rather than the criminal act, which triggers the trafficking statute, and distinguishes trafficking from distribution and simple possession." State v. Raffaldt, 318 S.C. 110, 117, 456 S.E.2d 390, 394 (1995). While the court in Raffaldt was not confronted with the mental state required for a trafficking conviction, that issue was addressed in State v. Taylor , 323 S.C. 162, 166, 473 S.E.2d 817, 819(Ct. App. 1996). In Taylor , the defendant was charged with trafficking more than ten grams of crank, in violation of section 44-53-375(C) of the South Carolina Code (Supp. 1995), which contains language nearly identical to section 44-53-370(e), including placement of the adverb "knowingly." Taylor argued the language required the trial court to charge the jury that "they could not find [her] guilty of trafficking in crank unless she knew there were ten grams or more." Taylor , 323 S.C. at 167, 473 S.E.2d at 819. Relying on Raffaldt , we disagreed. Id .
Raffaldt and Taylor illuminate the "special context" revealed by viewing section 44-53-370 as a whole. Because section 44-53-370(c) only requires knowledge that the substance is "controlled," and because Raffaldt and Taylor tell us the only difference between the elements of distribution and simple possession and the elements of trafficking is the amount of the controlled substance involved, there is no reason to suspect the Legislature meant to require knowledge of the specific type of controlled substance in trafficking prosecutions. Miles' interpretation depends upon isolating "knowingly" in subsection (e) and extending its modifying reach not only to "possession," but to the specific type of drugs listed. Magnifying individual words of a statute and insisting they be interpreted concretely can lead to strange results. One could, for example, myopically diagram subsection (e)(3) and conclude it criminalizes the possession of more than four grams of table salt, or even the conduct of the delivery person in this case. Further, were we to adopt Miles' version of subsection (e), the State would have to convince the jury beyond a reasonable doubt the defendant not only knew the drugs were oxycodone, but also knew that oxycodone is a "morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or 44-53-210, or ... any mixture containing any of these substances." We doubt the Legislature, in passing the drug trafficking laws, meant to create a scenario where a defendant is culpable only if armed with a proficiency in chemistry on par with a pharmacist or Walter White. That is why considering the words in their surrounding environment is essential, especially here where the statute runs to nearly five-thousand words and represents the Legislature's will in the massive field of drug interdiction. Given this background, "[i]f ever we are justified in reading a statute, not narrowly as through a keyhole, but in the broad light of the evils it aimed at and the good it hoped for, it is here." United States ex rel. Marcus v. Hess , 317 U.S. 537, 557, 63 S.Ct. 379, 87 L.Ed. 443(1943) (Jackson, J., dissenting).
Breaking Bad (AMC 2008–13).
Our emphasis on context and structure bears on the threshold decision of whether the statute is ambiguous, and is not meant to dilute the rule of lenity, as we later discuss.
--------
When a statute can be read in its ordinary sense, courts have no right to engineer an extraordinary one. That the Legislature titled the offense defined by subsection (e)(3) as "trafficking in illegal drugs" affirms our conclusion that a defendant need not know the precise identity of the controlled substance to be guilty. See Univ. of S.C. v. Elliott , 248 S.C. 218, 221, 149 S.E.2d 433, 434 (1966) ("[I]t is proper to consider the title or caption of an act in aid of construction to show the intent of the legislature."). This sense becomes inescapable when we consider subsection (e)(3)'s reference to sections 44-53-190 and 44-53-210 of the South Carolina Code (Supp. 2016), which set forth Schedules I and II governing classification of controlled substances. While we can interpret statutes by bringing in rules of grammar, logic, and other tools, we must be careful not to construe common sense out.
Courts in many other states share our conclusion that proving the defendant knew the specific type of drug is not required in trafficking and other controlled substance offenses. See, e.g. , State v. Stefani , 142 Idaho 698, 132 P.3d 455, 461 (Idaho Ct. App. 2005) ; People v. Bolden , 62 Ill.App.3d 1009, 20 Ill.Dec. 79, 379 N.E.2d 912, 915 (1978) ; Com. v. Rodriguez , 415 Mass. 447, 614 N.E.2d 649, 653 (1993) ; State v. Ali , 775 N.W.2d 914, 919 (Minn. Ct. App. 2009) ; State v. Edwards , 257 N.J.Super. 1, 607 A.2d 1312, 1313(App.Div.1992) ; State v. Engen , 164 Or.App. 591, 993 P.2d 161, 170 (1999) ; State v. Sartin , 200 Wis.2d 47, 546 N.W.2d 449, 455 (1996).
We cannot leave this issue without discussing the important canon of statutory construction that penal statutes are to be strictly construed. This rule of lenity applies when a criminal statute is ambiguous, and requires any doubt about a statute's scope be resolved in the defendant's favor. Berry v. State , 381 S.C. 630, 633, 675 S.E.2d 425, 426 (2009). But the rule of lenity is not a device to create ambiguity, nor should a court invoke it before considering the words of the statute in context. State v. Dawkins , 352 S.C. 162, 166–67, 573 S.E.2d 783, 785 (2002) ; State v. Firemen's Ins. Co. of Newark, N.J., 164 S.C. 313, 162 S.E. 334, 338 (1931) ( "The rule that a penal statute must be strictly construed does not prevent the courts from calling to their aid all the other rules of construction and giving each its appropriate scope, and is not violated by giving the words of the statute a reasonable meaning according to the sense in which they were intended, and disregarding ... even the demands of exact grammatical propriety." (citation and internal quotations omitted)); see also United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) (court should rely on lenity only if, "[a]fter ‘seiz[ing] every thing from which aid can be derived,’ " it is "left with an ambiguous statute" (quoting United States v. Fisher , 6 U.S. (2 Cranch) 358, 386, 2 L.Ed. 304 (1805) (Marshall, C.J.))).
One of the foundations of the rule of lenity is the concept of fair notice—the idea that those trying to walk the straight and narrow are entitled to know where the line is drawn between innocent conduct and illegality. McBoyle v. United States , 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931) ("[I]t is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear."). The line for conduct involving contraband is not merely clear but fluorescent. At least since State v. Freeland, 106 S.C. 220, 91 S.E. 3 (1916), we have required a defendant to know or be willfully ignorant that he was dealing with contraband drugs to satisfy criminal intent. This removes innocent activity, inadvertence or accident from the law's grasp. At any rate, we need not apply the rule of lenity here, as context has convinced us section 44-53-370(e)(3) does not require proof of knowledge of the specific identity of the controlled substance. Carter v. United States, 530 U.S. 255, 269, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (courts are required "to read into a statute only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct’ ").
Another foundation of the rule of lenity is the separation of powers. Our Constitution commits the task of defining criminal offenses solely to the Legislative Branch. Bass , 404 U.S. at 347-48, 92 S.Ct. 515 ; United States v. Wiltberger , 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820). If the Legislature believes our interpretation expands or is otherwise contrary to the scope it intended section 44-53-370(e)(3) and its harsh penalty scheme to have, it can amend the statute.
The trial judge's instructions—including his initial charge that criminal intent consists of "conscious wrongdoing"—conveyed the pertinent legal standards to the jury. He further correctly charged that the State still bore the burden of proving the drug quantity and identity.
III.
Miles next argues he was entitled to a directed verdict because the State presented insufficient evidence that he knowingly trafficked oxycodone. As we have held, the State needed only to prove Miles knew the item was a controlled substance. Because there was evidence Miles possessed the box, the jury was free to infer he knew what was in it. As the assistant solicitor pointed out, the evidence was literally lying at Miles' feet. See State v. Gore , 318 S.C. 157, 163, 456 S.E.2d 419, 422 (Ct. App. 1995) ("Possession gives rise to an inference of the possessor's knowledge of the character of the substance."). Of course, Miles also admitted he knew the box contained drugs. Viewing the evidence in the light most favorable to the State, these circumstances go far beyond mere suspicion. There was ample direct and substantial circumstantial evidence from which Miles' guilt could be fairly and logically deduced. Rule 19, SCRCrimP ; State v. Odems, 395 S.C. 582, 586, 720 S.E.2d 48, 50 (2011).
IV.
Miles contends the series of three statements he gave to law enforcement should have been suppressed because the agents engaged in the "question-first" manipulation of Miranda forbidden by Missouri v. Seibert , 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), and State v. Navy , 386 S.C. 294, 688 S.E.2d 838 (2010). He asserts Agent Edmonson's immediate questioning of him upon arrest was a custodial interrogation triggering Miranda . At trial, the State conceded as much and agreed not to present evidence of Miles' first two statements. But, during a later bench conference, Miles agreed to their admissibility, which is unsurprising as this strategy allowed Miles to get his theory of the case—that he didn't know what kind of drugs were in the package—before the jury without having to take the stand. See State v. Bryant , 372 S.C. 305, 642 S.E.2d 582 (2007) (stating an issue conceded at trial cannot be argued on appeal).
The issue of whether admission of Miles' third, written statement violated Seibert and Navy is unpreserved. Miles did not raise these cases or the "question-first" principle to the trial court. See State v. Byers , 392 S.C. 438, 446, 710 S.E.2d 55, 59 (2011) ("For an admissibility error to be preserved, the objection must include a specific ground ‘if the specific ground was not apparent from the context.’ " (quoting Rule 103(a)(1), SCRE )); In re Michael H. , 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004) ("In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court. In other words, the trial court must be given an opportunity to resolve the issue before it is presented to the appellate court." (citation omitted)).
Even if the issue was preserved, any error in admitting the redacted written statement was harmless. The statement was cumulative and could not have reasonably contributed to the verdict. It did not contradict Miles' earlier statements that he did not know the type of drugs in the box, and added he was paid one-hundred dollars to retrieve it. See State v. Martucci , 380 S.C. 232, 261, 669 S.E.2d 598, 614 (Ct. App. 2008) ("The admission of improper evidence is harmless where the evidence is merely cumulative to other evidence."). We cannot imagine the vague references to others involved packed any punch with the jury.
V.
The trial court did not err in its supplemental instruction to the jury that the State was only required to prove Miles knowingly trafficked in a controlled substance. There was sufficient evidence to carry the case to the jury, and even if the Miranda issue was preserved, we find no prejudice. Miles' conviction is therefore
AFFIRMED.
GEATHERS and MCDONALD, JJ., concur.
4.11 Notes & Questions (State v. Miles) 4.11 Notes & Questions (State v. Miles)
1. In Flores-Figueroa (discussed in Miles), Flores-Figueroa was convicted of illegal entry into the U.S. without inspection, misusing immigration documents, and aggravated identity theft. Aggravated identity theft (§1028A(a)(1) of the U.S. Code) adds a mandatory two-year sentence to anyone who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The facts showed that Mr. Flores-Figueroa presented to his employer counterfeit Social Security and alien registration cards that contained identification numbers that had been assigned to other people. But he testified that, although he knew the documents he presented were counterfeit, he did not know that the numbers on the documents in fact belonged to other people. The U.S. Supreme Court reversed, holding that Flores-Figueroa had to know that the means of identification belonged to another person--that is, it was not enough merely to show that he knew the identification materials were false.
How would Flores-Figueroa be decided under State v. Miles?
2. A statute reads, “It is unlawful to knowingly fire a machine gun in a densely populated neighborhood and thereby injure a bystander.” What words within this statute are modified by the adverb "knowingly"? In other words, what knowledge on the defendant's part is required by this statute for a successful conviction? Apply the holdings in Miles, Nations, and Flores-Figueroa to interpret this statute.
3. Revisiting the facts of Miles: What are some "good facts" for the prosecution? What facts allow us to reasonably infer that Miles knew what he was picking up? By the same token, what are some "good facts" for the defense? In what way could one rebut the prosecution's case regarding what Miles knew?
4. A mistake of fact is a defense against a crime requiring knowledge. That is, an honest misunderstanding about the crucial facts can negate the required mens rea. (Note: mistake of fact does not apply to strict liability crimes where knowledge would be irrelevant.)
Why didn't a mistake of fact defense work for Miles?
5. Consider the following alternative scenarios for Miles and assess whether a judge or jury might find a mistake of fact:
a) Miles received an email from his mother to expect a care package on that very day. That was, in fact, what he believed he was picking up.
b) Miles believed the package contained Adderall, which he uses on days he needs to attend classes or take exams.
c) Miles believed the package contained Oxycodone, but testing revealed the contents to be table salt.
d) Miles believed the package contained Oxycodone, but did not believe it was against the law to receive such a package. (See "mistake of law.")
4.12 Morissette v. United States 4.12 Morissette v. United States
MR. JUSTICE JACKSON delivered the opinion of the Court.
This would have remained a profoundly insignificant case to all except its immediate parties had it not been so tried and submitted to the jury as to raise questions both fundamental and far-reaching in federal criminal law, for which reason we granted certiorari.
On a large tract of uninhabited and untilled land in a wooded and sparsely populated area of Michigan, the Government established a practice bombing range over which the Air Force dropped simulated bombs at ground targets. These bombs consisted of a metal cylinder about forty inches long and eight inches across, filled with sand and enough black powder to cause a smoke puff by which the strike could be located. At various places about the range, signs read "Danger -- Keep Out -- Bombing Range." Nevertheless, the range was known as good deer country, and was extensively hunted.
Spent bomb casings were cleared from the targets and thrown into piles "so that they will be out of the way." They were not sacked or piled in any order, but were dumped in heaps, some of which had been accumulating for four years or upwards, were exposed to the weather and rusting away.
Morissette, in December of 1948, went hunting in this area but did not get a deer. He thought to meet expenses of the trip by salvaging some of these casings. He loaded three tons of them on his truck and took them to a nearby farm, where they were flattened by driving a tractor over them. After expending this labor and trucking them to market in Flint, he realized $84.
Morissette, by occupation, is a fruit stand operator in summer and a trucker and scrap iron collector in winter. An honorably discharged veteran of World War II, he enjoys a good name among his neighbors and has had no blemish on his record more disreputable than a conviction for reckless driving.
The loading, crushing and transporting of these casings were all in broad daylight, in full view of passers-by, without the slightest effort at concealment. When an investigation was started, Morissette voluntarily, promptly and candidly told the whole story to the authorities, saying that he had no intention of stealing. but thought the property was abandoned, unwanted and considered of no value to the Government. He was indicted, however, on the charge that he "did unlawfully, wilfully and knowingly steal and convert" property of the United States of the value of $84, in violation of 18 U.S.C. § 641, which provides that "whoever embezzles, steals, purloins, or knowingly converts" government property is punishable by fine and imprisonment. [Footnote 1]. Morissette was convicted and sentenced to imprisonment for two months or to pay a fine of $200. The Court of Appeals affirmed, one judge dissenting.
On his trial, Morissette, as he had at all times told investigating officers, testified that, from appearances, he believed the casings were cast-off and abandoned, that he did not intend to steal the property, and took it with no wrongful or criminal intent. The trial court, however, was unimpressed, and ruled: "[H]e took it because he thought it was abandoned and he knew he was on government property. . . . That is no defense. . . . I don't think anybody can have the defense they thought the property was abandoned on another man's piece of property." The court stated: "I will not permit you to show this man thought it was abandoned. . . . I hold in this case that there is no question of abandoned property." The court refused to submit or to allow counsel to argue to the jury whether Morissette acted with innocent intention. It charged: "And I instruct you that if you believe the testimony of the government in this case, he intended to take it. . . . He had no right to take this property. . . . [A]nd it is no defense to claim that it was abandoned because it was on private property. . . . And I instruct you to this effect: that if this young man took this property (and he says he did), without any permission (he says he did), that was on the property of the United States Government (he says it was), that it was of the value of one cent or more (and evidently it was), that he is guilty of the offense charged here. If you believe the government, he is guilty. . . . The question on intent is whether or not he intended to take the property. He says he did. Therefore, if you believe either side, he is guilty." Petitioner's counsel contended, "But the taking must have been with a felonious intent." The court ruled, however: "That is presumed by his own act."
The Court of Appeals suggested that "greater restraint in expression should have been exercised," but affirmed the conviction because, "As we have interpreted the statute, appellant was guilty of its violation beyond a shadow of doubt, as evidenced even by his own admissions." Its construction of the statute is that it creates several separate and distinct offenses, one being knowing conversion of government property. The court ruled that this particular offense requires no element of criminal intent. This conclusion was thought to be required by the failure of Congress to express such a requisite and this Court's decisions in United States v. Behrman, 258 U. S. 280, and United States v. Balint, 258 U. S. 250.
I
In those cases, this Court did construe mere omission from a criminal enactment of any mention of criminal intent as dispensing with it. If they be deemed precedents for principles of construction generally applicable to federal penal statutes, they authorize this conviction. Indeed, such adoption of the literal reasoning announced in those cases would do this and more -- it would sweep out of all federal crimes, except when expressly preserved, the ancient requirement of a culpable state of mind. We think a resume of their historical background is convincing that an effect has been ascribed to them more comprehensive than was contemplated and one inconsistent with our philosophy of criminal law.
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will." Common law commentators of the Nineteenth Century early pronounced the same principle, although a few exceptions not relevant to our present problem came to be recognized.
Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil. As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle, but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "willfulness," "scienter," to denote guilty knowledge, or "mens rea," to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common law crimes.
However, the Balint and Behrman offenses belong to a category of another character, with very different antecedents and origins. The crimes there involved depend on no mental element, but consist only of forbidden acts or omissions. This, while not expressed by the Court, is made clear from examination of a century-old but accelerating tendency, discernible both here and in England, to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.
While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called "public welfare offenses." These cases do not fit neatly into any of such accepted classifications of common law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property, but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does not grave damage to an offender's reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving.
The pilot of the movement in this country appears to be a holding that a tavernkeeper could be convicted for selling liquor to an habitual drunkard even if he did not know the buyer to be such. Barnes v. State, 19 Conn. 398 (1849). Later came Massachusetts holdings that convictions for selling adulterated milk in violation of statutes forbidding such sales require no allegation or proof that defendant knew of the adulteration. Commonwealth v. Farren, 9 Allen 489 (1864); Commonwealth v. Nichols, 10 Allen 199 (1865); Commonwealth v. Waite, 11 Allen 264 (1865). Departures from the common law tradition, mainly of these general classes, were reviewed and their rationale appraised by Chief Justice Cooley, as follows:
"I agree that as a rule there can be no crime without a criminal intent, but this is not by any means a universal rule. . . . Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them, the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible."
People v. Roby, 52 Mich. 577, 579, 18 N.W. 365, 366 (1884).
After the turn of the Century, a new use for crimes without intent appeared when New York enacted numerous and novel regulations of tenement houses, sanctioned by money penalties. Landlords contended that a guilty intent was essential to establish a violation. Judge Cardozo wrote the answer:
"The defendant asks us to test the meaning of this statute by standards applicable to statutes that govern infamous crimes. The analogy, however, is deceptive. The element of conscious wrongdoing, the guilty mind accompanying the guilty act, is associated with the concept of crimes that are punished as infamous. . . . Even there, it is not an invariable element. . . . But, in the prosecution of minor offenses, there is a wider range of practice and of power. Prosecutions for petty penalties have always constituted in our law a class by themselves. . . . That is true though the prosecution is criminal in form."
Tenement House Department of City of New York v. McDevitt, 215 N.Y. 160, 168, 109 N.E. 88, 90 (1915).
Soon, employers advanced the same contention as to violations of regulations prescribed by a new labor law. Judge Cardozo, again for the court, pointed out, as a basis for penalizing violations whether intentional or not, that they were punishable only by fine "moderate in amount", but cautiously added that, in sustaining the power so to fine unintended violations "we are not to be understood as sustaining to a like length the power to imprison. We leave that question open." People ex rel. Price v. Sheffield Farms Co., 1918, 225 N.Y. 25, 32-33, 121 N.E. 474, 476, 477.
Thus, for diverse but reconcilable reasons, state courts converged on the same result, discontinuing inquiry into intent in a limited class of offenses against such statutory regulations.
Before long, similar questions growing out of federal legislation reached this Court. Its judgments were in harmony with this consensus of state judicial opinion, the existence of which may have led the Court to overlook the need for full exposition of their rationale in the context of federal law. In overruling a contention that there can be no conviction on an indictment which makes no charge of criminal intent but alleges only making of a sale of a narcotic forbidden by law, Chief Justice Taft, wrote:
"While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not, in terms, include it . . . , there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. . . ."
United States v. Balint, supra, 258 U. S. 251-252.
He referred, however, to
"regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment, rather than the punishment of the crimes, as in cases of mala in se,"
and drew his citation of supporting authority chiefly from state court cases dealing with regulatory offenses. Id. at 258 U. S. 252.
On the same day, the Court determined that an offense under the Narcotic Drug Act does not require intent, saying,
"If the offense be a statutory one, and intent or knowledge is not made an element of it, the indictment need not charge such knowledge or intent."
United States v. Behrman, supra, at 258 U. S. 288.
Of course, the purpose of every statute would be "obstructed" by requiring a finding of intent, if we assume that it had a purpose to convict without it. Therefore, the obstruction rationale does not help us to learn the purpose of the omission by Congress. And since no federal crime can exist except by force of statute, the reasoning of the Behrman opinion, if read literally, would work far-reaching changes in the composition of all federal crimes. Had such a result been contemplated, it could hardly have escaped mention by a Court which numbered among its members one especially interested and informed concerning the importance of intent in common law crimes. This might be the more expected since the Behrman holding did call forth his dissent, in which Mr. Justice McReynolds and Mr. Justice Brandeis joined, omitting any such mention.
It was not until recently that the Court took occasion more explicitly to relate abandonment of the ingredient of intent not merely with considerations of expediency in obtaining convictions, nor with the malum prohibitumclassification of the crime, but with the peculiar nature and quality of the offense. We referred to " . . . a now familiar type of legislation whereby penalties serve as effective means of regulation", and continued,
"such legislation dispenses with the conventional requirement for criminal conduct -- awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger."
But we warned: "Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting." United States v. Dotterweich, 320 U. S. 277, 320 U. S. 280-281, 320 U. S. 284.
Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static. The conclusion reached in the Balint and Behrman cases has our approval and adherence for the circumstances to which it was there applied. A quite different question here is whether we will expand the doctrine of crimes without intent to include those charged here.
Stealing, larceny, and its variants and equivalents were among the earliest offenses known to the law that existed before legislation; they are invasions of rights of property which stir a sense of insecurity in the whole community and arouse public demand for retribution, the penalty is high and, when a sufficient amount is involved, the infamy is that of a felony, which, says Maitland, is ". . . as bad a word as you can give to man or thing." State courts of last resort, on whom fall the heaviest burden of interpreting criminal law in this country, have consistently retained the requirement of intent in larceny-type offenses. If any state has deviated, the exception has neither been called to our attention nor disclosed by our research.
Congress, therefore, omitted any express prescription of criminal intent from the enactment before us in the light of an unbroken course of judicial decision in all constituent states of the Union holding intent inherent in this class of offense, even when not expressed in a statute. Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already so well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense new to general law, for whose definition the courts have no guidance except the Act. Because the offenses before this Court in the Balint and Behrmancases were of this latter class, we cannot accept them as authority for eliminating intent from offenses incorporated from the common law. Nor do exhaustive studies of state court cases disclose any well considered decisions applying the doctrine of crime without intent to such enacted common law offenses, although a few deviations are notable as illustrative of the danger inherent in the Government's contentions here.
The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution's path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common law crimes on judicial initiative.
The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute. And where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.
We hold that mere omission from § 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced.
II
It is suggested, however, that the history and purposes of § 641 imply something more affirmative as to elimination of intent from at least one of the offenses charged under it in this case. The argument does not contest that criminal intent is retained in the offenses of embezzlement, stealing and purloining, as incorporated into this section. But it is urged that Congress joined with those, as a new, separate and distinct offense, knowingly to convert government property, under circumstances which imply that it is an offense in which the mental element of intent is not necessary.
Congress has been alert to what often is a decisive function of some mental element in crime. It has seen fit to prescribe that an evil state of mind, described variously in one or more such terms as "intentional," "willful," "knowing," "fraudulent" or "malicious," will make criminal an otherwise indifferent act, or increase the degree of the offense or its punishment. Also, it has at times required a specific intent or purpose which will require some specialized knowledge or design for some evil beyond the common law intent to do injury. The law under some circumstances recognizes good faith or blameless intent as a defense, partial defense, or as an element to be considered in mitigation of punishment. And treason -- the one crime deemed grave enough for definition in our Constitution itself -- requires not only the duly witnessed overt act of aid and comfort to the enemy but also the mental element of disloyalty or adherence to the enemy. In view of the care that has been bestowed upon the subject, it is significant that we have not found, nor has our attention been directed to, any instance in which Congress has expressly eliminated the mental element from a crime taken over from the common law.
The section with which we are here concerned was enacted in 1948, as a consolidation of four former sections of Title 18, as adopted in 1940, which, in turn, were derived from two sections of the Revised Statutes. The pertinent legislative and judicial history of these antecedents, as well as of § 641, is footnoted. We find no other purpose in the 1948 reenactment than to collect from scattered sources crimes so kindred as to belong in one category. Not one of these had been interpreted to be a crime without intention, and no purpose to differentiate between them in the matter of intent is disclosed.
No inference that some were and some were not crimes of intention can be drawn from any difference in classification or punishment. Not one fits the congressional classification of the petty offense; each is, at its least, a misdemeanor, and if the amount involved is one hundred or more dollars each is a felony. If one crime without intent has been smuggled into a section whose dominant offenses do require intent, it was put in ill-fitting and compromising company. The Government apparently did not believe that conversion stood so alone when it drew this one-count indictment to charge that Morissette "did unlawfully, wilfully and knowingly steal and convert to his own use."
Congress, by the language of this section, has been at pains to incriminate only "knowing" conversions. But, at common law, there are unwitting acts which constitute conversions. In the civil tort, except for recovery of exemplary damages, the defendant's knowledge, intent, motive, mistake, and good faith are generally irrelevant. If one takes property which turns out to belong to another, his innocent intent will not shield him from making restitution or indemnity, for his well meaning may not be allowed to deprive another of his own.
Had the statute applied to conversions without qualification, it would have made crimes of all unwitting, inadvertent and unintended conversions. Knowledge, of course, is not identical with intent, and may not have been the most apt words of limitation. But knowing conversion requires more than knowledge that defendant was taking the property into his possession. He must have had knowledge of the facts, though not necessarily the law, that made the taking a conversion. In the case before us, whether the mental element that Congress required be spoken of as knowledge or as intent, would not seem to alter its bearing on guilt, for it is not apparent how Morissette could have knowingly or intentionally converted property that he did not know could be converted, as would be the case if it was, in fact, abandoned, or if he truly believed it to be abandoned and unwanted property.
It is said, and at first blush the claim has plausibility, that, if we construe the statute to require a mental element as part of criminal conversion, it becomes a meaningless duplication of the offense of stealing, and that conversion can be given meaning only by interpreting it to disregard intention. But here again a broader view of the evolution of these crimes throws a different light on the legislation.
It is not surprising if there is considerable overlapping in the embezzlement, stealing, purloining, and knowing conversion grouped in this statute. What has concerned codifiers of the larceny-type offense is that gaps or crevices have separated particular crimes of this general class, and guilty men have escaped through the breaches. The books contain a surfeit of cases drawing fine distinctions between slightly different circumstances under which one may obtain wrongful advantages from another's property. The codifiers wanted to reach all such instances. Probably every stealing is a conversion, but certainly not every knowing conversion is a stealing. "To steal means to take away from one in lawful possession without right with the intention to keep wrongfully." (Italics added.) Irving Trust Co. v. Leff, 253 N.Y. 359, 364, 171 N.E. 569, 571. Conversion, however, may be consummated without any intent to keep and without any wrongful taking, where the initial possession by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one's custody for limited use. Money rightfully taken into one's custody may be converted without any intent to keep or embezzle it merely by commingling it with the custodian's own, if he was under a duty to keep it separate and intact. It is not difficult to think of intentional and knowing abuses and unauthorized uses of government property that might be knowing conversions but which could not be reached as embezzlement, stealing or purloining. Knowing conversion adds significantly to the range of protection of government property without interpreting it to punish unwitting conversions.
The purpose which we here attribute to Congress parallels that of codifiers of common law in England and in the States, and demonstrates that the serious problem in drafting such a statute is to avoid gaps and loopholes between offenses. It is significant that the English and State codifiers have tried to cover the same type of conduct that we are suggesting as the purpose of Congress here, without, however, departing from the common law tradition that these are crimes of intendment.
We find no grounds for inferring any affirmative instruction from Congress to eliminate intent from any offense with which this defendant was charged.
III
As we read the record, this case was tried on the theory that, even if criminal intent were essential, its presence (a) should be decided by the court (b) as a presumption of law, apparently conclusive, (c) predicated upon the isolated act of taking, rather than upon all of the circumstances. In each of these respects we believe the trial court was in error.
Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury. State court authorities cited to the effect that intent is relevant in larcenous crimes are equally emphatic and uniform that it is a jury issue. The settled practice and its reason are well stated by Judge Andrews in People v. Flack, 125 N.Y. 324, 334, 26 N.E. 267, 270, 11 L.R.A. 807:
"It is alike the general rule of law and the dictate of natural justice that, to constitute guilt, there must be not only a wrongful act, but a criminal intention. Under our system (unless in exceptional cases), both must be found by the jury to justify a conviction for crime. However clear the proof may be, or however incontrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but must always be submitted to the jury. Jurors may be perverse, the ends of justice may be defeated by unrighteous verdicts; but so long as the functions of the judge and jury are distinct, the one responding to the law, the other to the facts, neither can invade the province of the other without destroying the significance of trial by court and jury. . . ."
It follows that the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act. It often is tempting to cast in terms of a "presumption" a conclusion which a court thinks probable from given facts. The Supreme Court of Florida, for example, in a larceny case, from selected circumstances which are present in this case, has declared a presumption of exactly opposite effect from the one announced by the trial court here:
". . . But where the taking is open and there is no subsequent attempt to conceal the property, and no denial, but an avowal, of the taking, a strong presumption arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a conviction is authorized. . . ."
Kemp v. State, 146 Fla. 101, 104, 200 So. 368, 369.
We think presumptive intent has no place in this case. A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence considered together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime. Such incriminating presumptions are not to be improvised by the judiciary. Even congressional power to facilitate convictions by substituting presumptions for proof is not without limit. Tot v. United States, 319 U. S. 463.
Moreover, the conclusion supplied by presumption in this instance was one of intent to steal the casings, and it was based on the mere fact that defendant took them. The court thought the only question was, "Did he intend to take the property?" That the removal of them was a conscious and intentional act was admitted. But that isolated fact is not an adequate basis on which the jury should find the criminal intent to steal or knowingly convert, that is, wrongfully to deprive another of possession of property. Whether that intent existed, the jury must determine, nor only from the act of taking, but from that together with defendant's testimony and all of the surrounding circumstances.
Of course, the jury, considering Morissette's awareness that these casings were on government property, his failure to seek any permission for their removal, and his self-interest as a witness, might have disbelieved his profession of innocent intent and concluded that his assertion of a belief that the casings were abandoned was an afterthought. Had the jury convicted on proper instructions it would be the end of the matter. But juries are not bound by what seems inescapable logic to judges. They might have concluded that the heaps of spent casings left in the hinterland to rust away presented an appearance of unwanted and abandoned junk, and that lack of any conscious deprivation of property or intentional injury was indicated by Morissette's good character, the openness of the taking, crushing and transporting of the casings, and the candor with which it was all admitted. They might have refused to brand Morissette as a thief. Had they done so, that too would have been the end of the matter.
Reversed.
MR. JUSTICE DOUGLAS concurs in the result.
MR. JUSTICE MINTON took no part in the consideration or decision of this case.
341 U.S. 925.
[Footnote]
18 U.S.C. § 641, so far as pertinent, reads:
"Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof;"
"* * * *"
"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both."
Morissette v. United States, 187 F.2d 427, 431.
For a brief history and philosophy of this concept in Biblical, Greek, Roman, Continental and Anglo-American law see Radin, Intent, Criminal, 8 Encyc.Soc.Sci. 126. For more extensive treatment of the development in English Law, see 2 Pollock and Maitland, History of English Law, 448-511.
"Historically, our substantive criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong."
Pound, Introduction to Sayre, Cases on Criminal Law (1927).
In Williams v. New York, 337 U. S. 241, 337 U. S. 248, we observed that
"Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence."
We also there referred to " . . . a prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime." Id. at 337 U. S. 247. Such ends would seem illusory if there were no mental element in crime.
4 Bl.Comm. 21.
Examples of these texts and their alterations in successive editions in consequence of evolution in the law of "public welfare offenses," as hereinafter recited, are traced in Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55, 66.
Exceptions came to include sex offenses, such as rape, in which the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached age of consent. Absence of intent also involves such considerations as lack of understanding because of insanity, subnormal mentality, or infancy, lack of volition due to some actual compulsion, or that inferred from doctrines of coverture. Most extensive inroads upon the requirement of intention, however, are offenses of negligence, such as involuntary manslaughter or criminal negligence and the whole range of crimes arising from omission of duty. Cf. Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944).
Holmes, The Common Law, considers intent in the chapter on The Criminal Law, and earlier makes the pithy observation: "Even a dog distinguishes between being stumbled over and being kicked." P. 3. Radin, Intent, Criminal, 8 Encyc.Soc.Sci. 126, 127, points out that in American law "mens rea is not so readily constituted from any wrongful act" as elsewhere.
In the Balint case, Chief Justice Taft recognized this, but rather overstated it by making no allowance for exceptions such as those mentioned in n 8.
This trend and its causes, advantages and dangers have been considered by Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55; Hall, Prolegomena to a Science of Criminal Law, 89 U. of Pa.L.Rev. 549; Hall, Interrelations of Criminal Law and Torts, 43 Col.L.Rev. 753, 967.
The changes in English law are illustrated by Nineteenth Century English cases. In 1814, it was held that one could not be convicted of selling impure foods unless he was aware of the impurities. Rex v. Dixon, 3 M. & S. 11 (K.B.1814). However, thirty-two years later, in an action to enforce a statutory forfeiture for possession of adulterated tobacco, the respondent was held liable even though he had no knowledge of, or cause to suspect, the adulteration. Countering respondent's arguments, Baron Parke said,
"It is very true that, in particular instances, it may produce mischief, because an innocent man may suffer from his want of care in not examining the tobacco he has received, and not taking a warranty; but the public inconvenience would be much greater if, in every case, the officers were obliged to prove knowledge. They would be very seldom able to do so."
Regina v. Woodrow, 15 M. & W. 404, 417 (Exch. 1846). Convenience of the prosecution thus emerged as a rationale. In 1866, a quarry owner was held liable for the nuisance caused by his workmen dumping refuse into a river, in spite of his plea that he played no active part in the management of the business and knew nothing about the dumping involved. His knowledge or lack of it was deemed irrelevant. Regina v. Stephens, L.R. 1 Q.B. 702 (1866). Bishop, referring to this decision, says,
"The doctrine of this English case may almost be deemed new in the criminal law. . . . And, properly limited, the doctrine is eminently worthy to be followed hereafter."
1 Bishop, New Criminal Law (8th ed. 1892) § 1076. After these decisions, statutes prohibiting the sale of impure or adulterated food were enacted. Adulteration of Food Act (35 & 36 Vict. c. 74, § 2 (1872)); Sale of Food and Drugs Act of 1875 (38 & 39 Vict. c. 63). A conviction under the former was sustained in a holding that no guilty knowledge or intent need be proved in a prosecution for the sale of adulterated butter, Fizpatrick v. Kelly, L.R. 8 Q.B. 337 (1873), and in Betts v. Armstead, L.R. 20 Q.B.D. 771 (1888), involving the latter statute, it was held that there was no need for a showing that the accused had knowledge that his product did not measure up to the statutory specifications.
The development of strict criminal liability regardless of intent has been roughly paralleled by an evolution of a strict civil liability for consequences regardless of fault in certain relationships, as shown by Workmen's Compensation Acts, and by vicarious liability for fault of others as evidenced by various Motor Vehicle Acts.
Consequences of a general abolition of intent as an ingredient of serious crimes have aroused the concern of responsible and disinterested students of penology. Of course, they would not justify judicial disregard of a clear command to that effect from Congress, but they do admonish us to caution in assuming that Congress, without clear expression, intends in any instance to do so.
Radin, Intent, Criminal, 8 Encyc.Soc.Sci. 126, 130, says,
". . . as long as in popular belief intention and the freedom of the will are taken as axiomatic, no penal system that negates the mental element can find general acceptance. It is vital to retain public support of methods of dealing with crime."
Again,
"The question of criminal intent will probably always have something of an academic taint. Nevertheless, the fact remains that the determination of the boundary between intent and negligence spells freedom or condemnation for thousands of individuals. The watchfulness of the jurist justifies itself at present in its insistence upon the examination of the mind of each individual offender."
Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55, 56, says:
"To inflict substantial punishment upon one who is morally entirely innocent, who caused injury through reasonable mistake or pure accident, would so outrage the feelings of the community as to nullify its own enforcement."
Hall, Prolegomena to a Science of Criminal Law, 89 U. of Pa.L.Rev. 549, 569, appears somewhat less disturbed by the trend, if properly limited, but, as to so-called public welfare crimes, suggests that
"There is no reason to continue to believe that the present mode of dealing with these offenses is the best solution obtainable, or that we must be content with this sacrifice of established principles. The raising of a presumption of knowledge might be an improvement."
(Italics added.)
In Felton v. United States, 96 U. S. 699, the Court said,
"But the law at the same time is not so unreasonable as to attach culpability, and consequently to impose punishment, where there is no intention to evade its provisions. . . ."
Holmes, The Common Law.
For the place of the mental element in offenses against the revenues, see Spies v. United States, 317 U. S. 492; United States v. Scharton, 285 U. S. 518.
2 Russell on Crime (10th ed., Turner, 1950) 1037.
2 Pollock & Maitland, History of English Law, 465.
Examples of decision in diverse jurisdictions may be culled from any digest. Most nearly in point are Johnson v. State, 36 Tex. 375, holding that to take a horse running at large on the range is not larceny in the absence of an intent to deprive an owner of his property; Jordan v. State, 107 Tex.Cr.R. 414, 296 S.W. 585, that, if at the time of taking parts from an automobile, the accused believed that the car had been abandoned by its owner, he should be acquitted; Fetkenhauer v. State, 112 Wis. 491, 88 N.W. 294, that an honest, although mistaken, belief by defendant that he had permission to take property should be considered by the jury; and Devine v. People, 20 Hun, N.Y., 98, holding that a claim that an act was only a practical joke must be weighed against an admitted taking of property.
Others of like purport are Farzley v. State, 231 Ala. 60, 163 So. 394; Nickerson v. State, 22 Ala.App. 640, 119 So. 243; People v. Williams, 73 Cal. App. 2d 154, 166 P.2d 63; Schiff v. People, 111 Colo. 333, 141 P.2d 892; Kemp v. State, 146 Fla. 101, 200 So. 368; Perdew v. Commonwealth, 260 Ky. 638, 86 S.W.2d 534, holding that appropriation by a finder of lost property cannot constitute larceny in the absence of intent; People v. Shaunding, 268 Mich. 218, 255 N.W. 770; People v. Will, 289 N.Y. 413, 46 N.E.2d 498; Van Vechten v. American Eagle Fire Ins. Co., 239 N.Y. 303, 146 N.E. 432; Thomas v. Kessler, 334 Pa. 7, 5 A.2d 187; Barnes v. State, 145 Tex.Cr.R. 131, 166 S.W.2d 708; Sandel v. State, 131 Tex.Cr.R. 132, 97 S.W.2d 225; Weeks v. State, 114 Tex.Cr.R. 406, 25 S.W.2d 855; Heskew v. State, 18 Tex.App. 275; Page v. Commonwealth, 148 Va. 733, 138 S.E. 510, holding reversible error to exclude evidence having a tendency to throw light on the question of the bona fides of one accused of larceny; Butts v. Commonwealth, 145 Va. 800, 133 S.E. 764; State v. Levy, 113 Vt. 459, 35 A.2d 853, holding that the taking of another's property in good faith by inadvertence or mistake does not constitute larceny.
Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55, 73, 84, cites and classifies a large number of cases and concludes that they fall roughly into subdivisions of (1) illegal sales of intoxicating liquor, (2) sales of impure or adulterated food or drugs, (3) sales of misbranded articles, (4) violations of anti-narcotic Acts, (5) criminal nuisances, (6) violations of traffic regulations, (7) violations of motor vehicle laws, and (8) violations of general police regulations, passed for the safety, health or wellbeing of the community.
Sayre points out that, in criminal syndicalism or sedition cases, where the pressure to convict is strong, it has been accomplished by dispensing with the element of intent, in some instances by analogy with the public welfare offense. Examples are State v. Hennessy, 114 Wash. 351, 195 P. 211; People v. Ruthenberg, 229 Mich. 315, 201 N.W. 358; State v. Kahn, 56 Mont. 108, 182 P. 107; State v. Smith, 57 Mont. 563, 190 P. 107. Compare People v. McClennegen, 195 Cal. 445, 234 P. 91. This although intent is of the very essence of offenses based on disloyalty. Cf. Cramer v. United States, 325 U. S. 1; Haupt v. United States, 330 U. S. 631, where innocence of intention will defeat a charge even of treason.
United States v. Hudson and Goodwin, 7 Cranch 32; United States v. Gooding, 12 Wheat. 460.
18 U.S.C. § 81, Arson: " . . . willfully and maliciously . . . "; 18 U.S.C. § 113, Assault: "(a) . . . with intent to commit murder or rape. . . . (b) . . . with intent to commit any felony, except murder or rape . . . "; 18 U.S.C. § 152, Bankruptcy -- concealment of assets, false oaths and claims, bribery: " . . . knowingly and fraudulently . . . "; 18 U.S.C. § 201, Bribery and Graft: " . . . with intent to influence . . . "; 18 U.S.C. § 471, Counterfeiting and Forgery: " . . . with intent to defraud . . . "; 18 U.S.C. § 594, Intimidation of voters: " . . . for the purpose of . . . "; 18 U.S.C. § 1072, Concealing escaped prisoner: " . . . willfully . . . "; 61 Stat. 151, 29 U.S.C. § 162, Interference with a member of the National Labor Relations Board or an agent of the Board in his performance of his duties: " . . . willfully . . . "; 52 Stat. 1069, 29 U.S.C. § 216(a), Violations of provisions of Fair Labor Standards Act: " . . . willfully . . . "; 37 Stat. 251, 21 U.S.C. § 23, Packing or selling misbranded barrels of apples: " . . . knowingly. . . ."
18 U.S.C. § 1112, Manslaughter, " . . . the unlawful killing of a human being without malice", if voluntary, carries a maximum penalty of imprisonment not to exceed ten years. If the killing is "with malice aforethought", the crime is murder, 18 U.S.C. § 1111, and, if of the first degree, punishable by death or life imprisonment, or, if of the second degree, punishable by imprisonment for any term of years or life.
18 U.S.C. § 242; Screws v. United States, 325 U. S. 91.
I.R.C. §§ 145(a), 145(b), 53 Stat. 62, as amended, 26 U.S.C. §§ 145(a), 145(b), as construed in Spies v. United States,317 U. S. 492; 52 Stat. 1069, 29 U.S.C. § 216(a), stating the criminal sanctions for violations of the Fair Labor Standards Act, provides that:
"No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this subsection."
N.Y. Penal Law § 1306 provides that,
"Upon an indictment for larceny, it is a sufficient defense that the property was appropriated openly and avowedly, under a claim of title preferred in good faith, even though such claim is untenable."
U.S.Const. Art. III, § 3, cl. 1.
This provision was to prevent incrimination of mere mental operations such as "compassing" the death of the King. See Cramer v. United States, 325 U. S. 1. To hold that a mental element is necessary to a crime is, of course, not to say that it is all that is necessary.
The Reviser's Note to 18 U.S.C. § 641 states that it is derived from 18 U.S.C. (1940 ed.) §§ 82, 87, 100, and 101 which, in turn, are from Rev.Stat. §§ 5438 and 5439. We shall consider only the 1940 code sections and their interpretations.
18 U.S.C. (1940 ed.) § 82 reads:
"Whoever shall take and carry away or take for his use, or for the use of another, with intent to steal or purloin . . . any property of the United States . . . shall be punished as follows. . . ."
In United States v. Anderson, 45 F. Supp. 943, a prosecution for conspiracy to violate that section, District Judge Yankwich said:
"It has been before the courts in very few cases. But such courts as have had cases under it, including our own Ninth Circuit Court of Appeals, have held that the object of the section is to introduce the crime of larceny into the Federal Criminal Code."
"In Frach v. Mass, 9 Cir., 1939, 106 F.2d 820, 821, we find these words: 'Larceny of property of the United States is made a crime by 18 U.S.C. § 82.'"
"This means of course, that, in interpreting the statute, we may apply the principles governing the common law crime of larceny, as interpreted by the courts of various states."
45 F. Supp. at 945.
United States v. Trinder, 1 F. Supp. 659, was a prosecution of a group of boys, under § 82, for "stealing" a government automobile. They had taken it for a joy ride without permission, fully intending to return it when they were through. Their plans went awry when the auto came to grief against a telephone pole. In dismissing the complaint, the District Judge said:
"Upon principle and authority, there was no stealing, but merely trespass; secret borrowing. At common law and likewise by the federal statute (18 U.S.C. § 82) adopting common law terms, stealing in general imports larceny; that is, felonious taking and intent to permanently deprive the owner of his property."
1 F. Supp. at 660.
18 U.S.C. (1940 ed.) § 87, entitled "Embezzling arms and stores", provides:
"Whoever shall steal, embezzle, or knowingly apply to his own use, or unlawfully sell, convey, or dispose of, any ordnance, arms, ammunition, clothing, subsistence, stores, money, or other property of the United States, furnished or to be used for the military or naval service, shall be punished as prescribed in sections 80 and 82 to 86 of this title."
No cases appear to have been decided relating to the element of intent in the acts proscribed in that section.
18 U.S.C. (1940 ed.) § 100, "Embezzling public moneys or other property", states that:
"Whoever shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, shall be fined not more than $5,000, or imprisoned not more than five years, or both."
The only noted case of consequence is Crabb v. Zerbst, 99 F.2d 562, to which the dissent below referred at some length. The appellant there was convicted of feloniously taking and carrying away certain personal property of the United States in violation of § 46 of the Criminal Code, 18 U.S.C. (1940 ed.) § 99, and had been sentenced to seven years' imprisonment. He argued that the five-year limitation of sentence in 18 U.S.C. (1940 ed.) § 100 for stealing property of the United States reduced the ten-year limitation in § 99 for feloniously taking and carrying away property of the United States to five years also.
The Court of Appeals rejected his argument, holding that the crime of "stealing" in § 100 was separate and distinct from the offense specified in § 99, on the ground that § 100 was a broadening of the common law crime of larceny to foreclose any avenue by which one might, in the process of pleading, escape conviction for one offense by proving that he had committed another only a hair's breadth different.
In the course of its opinion, it advanced the following pertinent observations:
"That felonious taking and carrying away of property which may be the subject of the offense constitutes the common law offense of larceny cannot be disputed. . . . However, it is doubtful if at common law any fixed definition or formula (as to the meaning of 'larceny') was not strained in its application to some of the cases clearly constituting the offense. Modern criminal codes treat the offense in various ways. Some define the offense by following the old cases, and are merely declaratory of the common law, while others have broadened the offense to include offenses previously known as embezzlement, false pretenses, and even felonious breaches of trust."
"As pointed out above, the modern tendency is to broaden the offense of larceny, by whatever name it may be called, to include such related offenses as would tend to complicate prosecutions under strict pleading and practice. In some of these statutes, the offense is denominated 'theft' or 'stealing.' No statute offers a clearer example of compromise between the common law and the modern code than the two sections here involved. Section 46 [18 U.S.C. § 99 (1940 ed.)] deals with robbery and larceny, the description of the latter being taken from the common law. Section 47 [18 U.S.C. § 100 (1940 ed.)] denounces the related offenses which might be included with those described in section 46 under a code practice seeking to avoid the pitfalls of technical pleading. In it, the offense of embezzlement is included by name, without definition. Then, to cover such cases as may shade into larceny, as well as any new situation which may arise under changing modern conditions and not envisioned under the common law, it adds the words steal or purloin. . . . Stealing, having no common law definition to restrict its meaning as an offense, is commonly used to denote any dishonest transaction whereby one person obtains that which rightfully belongs to another and deprives the owner of the rights and benefits of ownership, but may or may not involve the element of stealth usually attributed to the word purloin. . . . Thus, in any case involving larceny as defined by the common law, section 46 [18 U.S.C. § 99 (1940 ed.)] would apply. Where the offense is embezzlement, or its nature so doubtful as to fall between larceny and embezzlement, it may be prosecuted under section 47 [18 U.S.C. § 100 (1940 ed.)]."
99 F.2d at 564-565.
The reference in Crabb v. Zerbst to 18 U.S.C. (1940 ed.) § 99, the robbery and larceny statute then operative, suggests examination of its successor in today's code. For purpose of clarification, that section states that:
"Whoever shall rob another of any kind or description of personal property belonging to the United States, or shall feloniously take and carry away the same, shall be fined not more than $5,000, or imprisoned not more than ten years, or both."
The Reviser's Note to 18 U.S.C. § 641, makes no mention of it as a successor to that section. The present robbery statute is 18 U.S.C. § 2112, "Personal property of United States", providing that:
"Whoever robs another of any kind or description of personal property belonging to the United States, shall be imprisoned not more than fifteen years."
The Reviser's Note to that section recites that it is derived from § 99 of the 1940 Code, and "That portion of said section 99 relating to felonious taking was omitted as covered by section 641 of this title", which makes it clear that, notwithstanding the absence of any reference to 18 U.S.C. (1940 ed.) § 99 in the Note to 18 U.S.C. § 641, the crime of larceny by a felonious taking and carrying away has been transported directly from the former into the latter.
18 U.S.C. (1940 ed.) § 101 is the forerunner of that part of present § 641 dealing with receiving stolen property, and has no application to the problem at hand.
The history of § 641 demonstrates that it was to apply to acts which constituted larceny or embezzlement at common law and also acts which shade into those crimes but which, most strictly considered, might not be found to fit their fixed definitions. It is also pertinent to note that it renders one subject to its penalty who "knowingly converts to his use" property of the United States. The word "converts" does not appear in any of its predecessors. 18 U.S.C. (1940 ed.) § 82 is applicable to
"Whoever shall take and carry away or take for his use, or for the use of another, with intent to steal or purloin . . . any property of the United States . . . shall be punished as follows. . . ."
18 U.S.C. (1940 ed.) § 87 uses the words "knowingly apply to his own use". Neither 18 U.S.C. (1940 ed.) §§ 99, 100, nor 101 has any words resembling "knowingly converts to his own use." The 1948 Revision was not intended to create new crimes, but to recodify those then in existence. We find no suggestion that a guilty intent was not a part of each crime now embodied in § 641.
18 U.S.C. §§ 1, 641.
Had the indictment been limited to a charge in the words of the statute, it would have been defective if, in the light of the common law, the statute itself failed to set forth expressly, fully, and clearly all elements necessary to constitute the offense. United States v. Carll, 105 U. S. 611.
Harker v. Dement, 9 Gill (Md.), 7, 52 Am.Dec. 670 (1850); Railroad Co. v. O'Donnell, 49 Ohio St. 489, 32 N.E. 476 (1892). The rationale underlying such cases is that, when one clearly assumes the rights of ownership over property of another, no proof of intent to convert is necessary. It has even been held that one may be held liable in conversion even though he reasonably supposed that he had a legal right to the property in question. Row v. Home Sav. Bank, 306 Mass. 522, 29 N.E.2d 552 (1940). For other cases in the same vein, see those collected in 53 Am.Jur. 852-854. These authorities leave no doubt that Morissette could be held liable for a civil conversion for his taking of the property here involved, and the instructions to the jury might have been appropriate in such a civil action. This assumes, of course, that actual abandonment was not proven, a matter which petitioner should be allowed to prove if he can.
The Larceny Act of 1916, 6 & 7 Geo. V, c. 50, an Act "to consolidate and simplify the Law relating to Larceny triable on Indictment and Kindred Offences," provides:
"1. For the purposes of this Act -- "
"(1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof:"
"Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner. . . ."
For the growth and development of the crime of larceny in England, see 2 Russell on Crime (10th ed., Turner, 1950), 1037-1222, from which the material above was taken.
N.Y.Penal Code, § 1290, defines larceny as follows:
"A person who, with the intent to deprive or defraud another of the use and benefit of property or to appropriate the same to the use of the taker, or of any other person other than the true owner, wrongfully takes, obtains or withholds, by any means whatever, from the possession of the true owner or of any other person any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind, steals such property, and is guilty of larceny."
The same section provides further that it shall be no defense to a prosecution that:
"2. The accused in the first instance obtained possession of, or title to, such property lawfully, provided he subsequently wrongfully withheld or appropriated such property to his own use or the use of any person not entitled to the use and benefit of such property. . . ."
The Historical Note to that section discloses that it represents an attempt to abolish the distinctions between kinds of larcenies. Laws 1942, c. 732, § 1, provided:
"It is hereby declared as the public policy of the state that the best interests of the people of the state will be served, and confusion and injustice avoided, by eliminating and abolishing the distinctions which have hitherto differentiated one sort of theft from another, each of which, under section twelve hundred and ninety of the penal law, was denominated a larceny, to-wit: common law larceny by asportation, common law larceny by trick and device, obtaining property by false pretenses, and embezzlement."
Cf. Morgan, Instructing the Jury Upon Presumptions and Burden of Proof, 47 Harv.L.Rev. 59; Morgan, Some Observations Concerning Presumption, 44 Harv.L.Rev. 906.
4.13 Notes & Questions (Morrisette v. United States) 4.13 Notes & Questions (Morrisette v. United States)
Notes & Questions
1. When interpreting statutes, the Supreme Court sometimes brings to bear certain presumptions that reflect broader judicial concerns or policy goals. Here, the Court notes that "where Congress borrows terms of art...[from common law], it presumably knows and adopts the [general meanings surrounding those borrowed words]." And, "absent contrary direction," Congress adopts them without departing from such "widely accepted definitions." Is this a fair presumption? What would a clear "contrary direction" look like? Was this case an example of bad statutory drafting? How would the court in Nations speak to this?
2. The Court also gestures at the aims of punishment in this case, when it says that requiring a mens rea component to a crime enables "deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution." A crime without a mens rea element, the Court continues in a footnote, would make the ends of reformation and rehabilitation "seem illusory." What do you make of this rationale (that rehabilitation is the dominant objective of public prosecution)? By the same token, do you think strict liability crimes are mainly retributive? And would simply adding a mens rea element curb the overall retributive impulse of punishing for a crime?
3. The facts in Morissette revolve around a criminal conviction, but the court gestures toward a common form of strict liability in the civil context, "public welfare offenses." As the court describes:
These cases do not fit neatly into any of such accepted classifications of common law offenses, such as those against the state, the person, property, or public morals....Many [public welfare] violations...result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted.
The case also cites a seminal 1933 article by Harvard Law professor Francis Sayre, listing some categories of public welfare offenses:
(1) illegal sales of intoxicating liquor, (2) sales of impure or adulterated food or drugs, (3) sales of misbranded articles, (4) violations of antinarcotic Acts, (5) criminal nuisances, (6) violations of traffic regulations, (7) violations of motor-vehicle laws, and (8) violations of general police regulations, passed for the safety, health or well-being of the community."
Id. at n. 20 (citing Francis B. Sayre, Public Welfare Offenses, 33 Col.L.Rev. 55, 73, 84 (1933)).
What are some good examples of crimes that could be classified as "public welfare offenses"? Do you think these should be crimes that call for a mental element, or not?
4. Recall the State's burden in Nations of having to prove "actual" knowledge or how Conley overcomes the difficulty of proving an "intentional" state of mind by allowing an inference based on the surrounding circumstances. Strict liability would avoid those problems since there would be no need to prove intent. Consider this elided portion from the case, discussing how strict criminal liability in nineteenth-century English law was premised on lowering the burden of proof:
In 1814,...one could not be convicted of selling impure foods unless he was aware of the impurities. Rex v. Dixon, 3 M. & S. 11 (K. B. 1814). However, thirty-two years later, in an action to enforce a statutory forfeiture for possession of adulterated tobacco, the respondent was held liable even though he had no knowledge of, or cause to suspect, the adulteration....[The court justified its holding under the rationale that] the public inconvenience would be much greater, if in every case, the officers were obliged to prove knowledge. They would be very seldom able to do so.” Regina v. Woodrow, 15 M. & W. 404, 417 (Exch. 1846)....In 1866, a quarry owner was held liable for the nuisance caused by his workmen dumping refuse into a river, in spite of his plea that he played no active part in the management of the business and knew nothing about the dumping involved. His knowledge or lack of it was deemed irrelevant. Regina v. Stephens, L. R. 1 Q. B. 702 (1866)....After these decisions, statutes prohibiting the sale of impure or adulterated food were enacted [that reinforced these holdings that no knowledge/intent was required].
Morissette, 342 U.S. at 253 n.12.
How important is it for some crimes to entail a lighter prosectorial burden? What would be some benefits and costs for doing so?
5. The court in Morissette tells us there is a strong presumption disfavoring strict liability in criminal law. At the same time, recall that the Miles court effectively eliminates the need to show the defendant knew he was possessing the exact drug he is charged with possessing. How do you reconcile the Miles holding with the general statement in Morissette about courts disfavoring strict liability unless clearly specified? Is Morrisette still a correct description of the law, especially since the sentences for drug offenses are often longer than those for theft?
Strict liability sample problems
Problem 1: Donna parks her car and inserts enough money in the meter for one hour before going to her meeting. She checks her watch regularly and promptly leaves at the one-hour mark to feed the meter again. Unfortunately, her watch was running slow and she received a ticket. The offense is punishable by a $50 fine. If she was found guilty of this offense, what type of statute governed this offense?
Problem 2: D runs a gas station convenience store, where D sells some groceries, including eggs. Last week, an officer purchased rotten eggs. Later D was fined $100 after being charged with the federal crime of selling adulterated eggs in interstate commerce.
21 U.S.C. 1037: (1) No person shall buy, sell, or transport, … in any business in commerce any restricted eggs capable of use as human food, except as authorized by regulations … to assure that only eggs it for human food are used for such purpose.
Which of the following might work as a defense?
- I did not know the eggs were rotten
- I did not know the law prohibited selling rotten eggs
- I gave the customer notice by displaying the expiration date
- D does not have a defense
Problem 3: D was pulled over for speeding in California, after an officer clocked D driving 85mph in a 55mph zone. D explained that they were driving their feverish grandmother, who was laying down in the back seat, to the emergency room. The offense is punishable by a $1000 ticket.
Is D guilty? Should D be prosecuted? This type of issue is covered under the "choice of evils" doctrine, which will cover in the Defenses chapter.
4.14 Kougl v. Board of Liquor License Commissioners 4.14 Kougl v. Board of Liquor License Commissioners
137 A.3d 1062
Steven KOUGL, et al. v. The BOARD OF LIQUOR LICENSE COMMISSIONERS FOR BALTIMORE CITY.
No. 935,
Sept. Term, 2015.
Court of Special Appeals of Maryland.
June 2, 2016.
*316Peter A. Prevas (Prevas and Prevas, on the brief) Baltimore, MD, for appellants.
Shelley Johnson, Annapolis, MD, for appellees.
Panel: WOODWARD, GRAEFF, and ARTHUR, JJ.
The eagle suffers little birds to sing,
And is not careful what they mean thereby,
Knowing that with the shadow of his wings
He can at pleasure stint their melodyf.]
—Tamora, Titus Andronicus, Act 4, Scene 4 (W. Shakespeare)
In the instant case, we are called upon to decipher the meaning of the word “suffer,” and its analogs, “permit” and “allow.” Specifically, we must decide whether these terms, when used in rules governing the conduct of holders of a liquor license in Baltimore City, require proof of knowledge on the part of such licensees.
Appellant, Steven Kougl, owns Club Harem, a Baltimore tavern and adult entertainment business, and holds a liquor license for that location issued by appellee, the Board of Liquor License Commissioners for Baltimore City (“the Liquor Board”). On July 2, 2014, the Liquor Board charged Kougl with violating three Liquor Board Rules related to solicitation of prostitution, indecent exposure, and violation of public morals, all occurring on April 25, 2013, at Club Harem, when an employee exposed herself to an undercover police officer and then solicited sexual intercourse from the same officer. The Liquor Board found Kougl guilty of all three violations and ordered that his liquor license be suspended for one month. Kougl filed for judicial review in the Circuit Court for Baltimore City, which affirmed the decision of the Liquor Board.
On appeal to this Court, Kougl raises four questions for our review, which we have condensed and rephrased as two ques*317tions:1
1. Did the Liquor Board make sufficient findings of fact in support of the three charged violations of the Liquor Board Rules?
2. Did the Liquor Board err in concluding that Kougl was guilty of the three violations even though there was no evidence that Kougl had knowledge of his employee’s behavior?
For reasons set forth herein, we answer both questions in the affirmative, and thus reverse the judgment of the circuit court and remand the case to that court for entry of a judgment reversing the decision of the Liquor Board.
BACKGROUND
On April 25, 2013, Detective Fletcher Jackson, a Baltimore City police officer assigned to the Special Enforcement Section, entered Club Harem in plain clothes to conduct a prostitution investigation. Jamaica Brickhouse, a woman who worked at Club Harem, approached Det. Jackson at the bar and asked if she could join him. Det. Jackson said “sure,” and bought Brickhouse a drink. After some initial conversation, Brickhouse exposed her breasts to Det. Jackson. Brickhouse invited Det. Jackson to touch her breasts, which he did. Brickhouse then suggested a lap dance or a trip to “the VIP,” where they could “do whatever up there.” Det. Jackson asked how much it would cost him to have sex with Brickhouse; Brickhouse replied that it would cost $170 “for the room,” plus a tip for her services. Det. Jackson said that he could tip $100, and Brickhouse agreed. Brickhouse returned to the *318stage to perform, and Det. Jackson notified other officers. Brickhouse, however, was not issued a criminal summons until December 10, 2013, almost eight months later.2
Fifteen months after the incident, on July 2, 2014, the Liquor Board charged Kougl with violating three Liquor Board Rules related to solicitation of prostitution in violation of Rule 4.17(a), indecent exposure in violation of Rule 4.17(b), and violation of public morals in violation of Rule 4.18. On July 17, 2014, the Liquor Board held a hearing on the charges against Kougl. Det. Jackson was the only witness for the prosecution; Kougl testified in his own defense. The Liquor Board voted 2-1 that Kougl was guilty of the three violations3 and suspended his liquor license for one month.
On July 18, 2014, Kougl filed a Petition for Judicial Review in the circuit court. On March 2, 2015, Kougl filed his Memorandum, in which he argued that (1) the Liquor Board’s decision was not based on substantial evidence, because “[t]here [wa]s nothing in [Det. Jackson’s] testimony to indicate that the [licensee knew, allowed or permitted this type of activity, which is needed to sustain the violations”; (2) its decision was unreasonable and arbitrary, because the Chairman of the Liquor Board stated that a licensee “would be responsible for actions of an employee” regardless of “whether the [licensee knew or did not know or allowed or did not allow or permitted or did not permit” the prohibited activity; and (3) the Liquor Board failed to make specific findings of fact and conclusions of law as required. On April 15, 2015, the Liquor Board filed its Response to Kougl’s Memorandum, in which it contended that (1) its decision was based on substantial evidence; (2) its decision was reasonable; and (3) the Liquor Board made sufficient findings of fact and conclusions of law.
*319On May 22, 2015, the circuit court held oral argument and issued an oral ruling affirming the decision of the Liquor Board. On May 28, 2015, the court entered its order affirming the Liquor Board’s decision. On June 22, 2015, Kougl filed a timely notice of appeal.
STANDARD OF REVIEW
Maryland law provides by statute that the action of a local liquor board is presumed to be proper and places the burden of proof upon the licensee to show that the decision complained of was arbitrary, fraudulent, unsupported by substantial evidence, illegal, or against the public interest. Md.Code (1957, 2011 Repl. Vol), Art. 2B, § 16 — 101(e)(l)(i). This Court has explained appellate review of a Liquor Board’s decision as follows:
While the last sentence of § 16-101(e)(l)(i) expressly permits the trial court, under certain circumstances, to hear additional evidence, the court may hear such evidence only to ascertain the veracity of findings of fact and conclusions of law reached by the Board. As the section does not authorize appeals de novo, the trial court may not hear additional evidence on matters not addressed by the Board. This Court has consistently explained that judicial review of a decision by the Board is similar to review of decisions by most other administrative agencies. It is a cardinal rule of administrative appeals that a reviewing court ... shall apply the substantial evidence test to final decisions of an administrative agency such as the Board, but it must not itself make independent findings of fact or substitute its judgment for that of the agency.
Judicial review of administrative action differs from appellate review of a trial court judgment. In the latter context the appellate court will search the record for evidence to support the judgment and will sustain the judgment for a reason plainly appearing on the record whether or not the reason was expressly relied upon by the trial court. However, in judicial review of agency action the court may not uphold the agency order unless it is sustaina*320ble on the agency’s findings and for the reason stated by the agency.
Blackburn v. Bd. of Liquor License Comm’rs for Balt. City, 130 Md.App. 614, 623-24, 747 A.2d 725 (2000) (emphasis added) (citations and internal quotation marks omitted).
“Of course, the reviewing court may substitute its judgment for that of the [Liquor] Board on questions of law.” Id. at 624, 747 A.2d 725. In deciding whether to substitute its judgment on a question of law, a court should accord a degree of deference to the position of the administrative agency. Md. Aviation Admin. v. Noland, 386 Md. 556, 572, 873 A.2d 1145 (2005). “Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.” Id. “An agency conclusion will not be upheld upon review, however, if based upon an error of law.” Hoyle v. Bd. of Liquor License Comm’rs for Balt. City, 115 Md.App. 124, 129, 692 A.2d 1 (1997).
DISCUSSION
I.
Sufficient Findings of Fact
“There is no express requirement that the Board set forth specific findings of fact and conclusions of law. In order for any meaningful review to be conducted, however, the Board must do so, at least informally.” Blackburn, 130 Md.App. at 624, 747 A.2d 725 (citation omitted).
Kougl argues that the Liquor Board did not make sufficient findings of fact to allow for meaningful judicial review. Specifically, Kougl contends that the Liquor Board’s decision consists of the following two statements, neither of which contain any findings of fact:
All right. The verdict is responsible for all three charges. The police department is not on trial here. Mr. Kougl is. And bar owners or licensees are responsible for the conduct *321of their employees, as I have said before, in all cases, in all bars, in the city of Baltimore.
All right, my finding is responsible to all three charges and close him for one month, effective immediately.
According to Kougl, the above statements were insufficient to support a legal conclusion that Kougl violated the Rules at issue.
The Liquor Board responds that there is no requirement that it set forth specific findings of fact so long as its informal findings are sufficient to allow for “meaningful appellate review.” Furthermore, the Liquor Board argues that it made informal findings of fact that were “sufficient for this Court to determine whether substantial evidence supports the Board’s conclusion that Kougl violated the three Liquor Board Rules as charged.” We agree with the Liquor Board and shall explain.
As previously indicated, Kougl, as the licensee, was charged ■with violating Rules 4.17(a), 4.17(b), and 4.18. Rule 4.17 provides:
Sexual Practices and Obscenity
(a) No licensee shall permit or suffer his premises to be used for the purpose of any sexual activity, nor shall any licensee permit or suffer any employee, patron or frequenter to solicit any person for prostitution or other immoral purposes.
(b) No licensee shall permit or suffer any person to appear in any act or other performance with breasts or the lower torso uncovered; nor shall any licensee knowingly permit or suffer his premises to be used for the conduct, exhibition or performance of an obscene act or other performance.
(Emphasis added).
Rule 4.18 provides:
Illegal Conduct
*322No licensee shall commit or allow the commission on his premises of any act which shall be contrary to any federal, state or local statute, law or ordinance or against the public peace, safety, health, welfare, quiet or morals.[4]
At the conclusion of the hearing on the charges against Kougl, the following occurred:
CHAIRMAN WARD: All right. The verdict is responsible for all three charges. The police department is not on trial here. Mr. Kougl is. And bar owners or licensees are responsible for the conduct of their employees, as I have said before, in all cases, in all bars, in the city of Baltimore.
The only question now is punishment----
All right, my finding is responsible to all three charges and close him for one month, effective immediately. And I’d be glad to hear from the other commissioners.
*323COMMISSIONER JONES: I agree. I agree that there’s a guilty for all charges. It’s clear to me that this thing took place. I have confidence in the police department. If I didn’t, the system would have a great defect in it, so I agree to the one month close order.
CHAIRMAN WARD: Commissioner?
COMMISSIONER MOORE: I disagree. I don’t think that the evidence substantiates the charges. And I’m concerned that there was a lapse of eight months. And I think that is extraordinary. It is unusual and it is not acceptable practice. And I think that that argues against a finding of guilt. So I say no.
CHAIRMAN WARD: Two to one. You heard the thing, you heard the penalty, sir. Good luck to you.
(Emphasis added).
The excerpt above makes clear that Commissioner Jones expressly relied on Det. Jackson’s testimony, and Chairman Ward implicitly relied on such testimony. Moreover, Kougl, in his testimony, did not dispute any of the evidence presented in Det. Jackson’s testimony, so a finding of guilty necessarily meant that Chairman Ward and Commissioner Jones credited Det. Jackson’s testimony as true.5
Furthermore, a “Board Summary” was issued after the hearing, which set forth the factual basis for each violation:
Violation of Rule 4.17(a) “No licensee shall permit or suffer his premises to be used for the purpose of any sexual activity, nor shall any licensee permit or suffer any employee, patron or frequenter to solicit any person for prostitution or other immoral purposes.” (Re: April 25, 2013, *324dancer solicited undercover police officer for sexual intercourse ) GUILTY 2-1
Violation of Rule 4.17(b) “No licensee shall permit or suffer any person to appear in any act or other performance with breasts or the lower torso uncovered; no[r] shall any licensee knowingly permit or suffer his premises to be used for the conduct, exhibition or performance of an obscene act or other performance” (Re: April 25, 2013, dancer exposed herself to undercover police officer) GUILTY 2-1
Violation of Rule 4.18 “No licensee shall commit or allow the commission on his premises of any act which shall be contrary to any federal, state or local statue [sic], law or ordinance or against the public peace, safety, health, welfare, quiet or morals.” (Re: April 25, 2013, dancer solicited undercover police officer for sexual intercourse; dancer exposed herself to undercover police officer) GUILTY 2-1
(Italics added) (bold in original). The facts supporting each violation, as emphasized in italics above, tracks Det. Jackson’s testimony, and provides a sufficient factual basis to allow for meaningful judicial review.
II.
Strict Liability
Kougl argues that Rules 4.17 and 4.18 require some evidence or inference therefrom that Kougl suffered, permitted, or allowed solicitation and nudity to occur, and there was no evidence to support such a finding. According to Kougl, there was insufficient evidence for the Liquor Board to infer that Kougl permitted such conduct to occur “merely by reason that the dancer solicited the detective.”
The Liquor Board responds that the three violations “are, as a matter of law, strict liability offenses,” none of which require “a licensee’s knowledge of the impermissible conduct.” The Liquor Board analogizes Rules 4.17(a) and (b) to Rule 4.01(a), which prohibits sales of alcohol to minors, to argue that both Rules “contain[] both a strict liability prohibition and a second provision with a knowledge requirement.” As *325for Rule 4.18, the Liquor Board argues that it “contains no knowledge or mens rea language. Therefore, it describes a strict liability offense.” According to the Liquor Board, Kougl was found guilty of violating the strict liability portion of the Rules.
By virtue of its argument that the charged violations are strict liability offenses, the Liquor Board concedes that the evidence adduced at the hearing was insufficient to find that Kougl had actual or constructive knowledge of the violations. Upon review of the record, we agree that there was simply no evidence of Kougl’s actual or constructive knowledge of the violations.
Whether Rules 4.17 and 4.18 impose a strict liability standard on a licensee depends on the meaning of the words “suffer,” “permit,” and “allow” as used in the Rules. In determining the meaning of such words, “we apply well-settled rules of statutory construction, the cardinal rule of [which] is to ascertain and effectuate the intent of the Legislature.” Assateague Coastkeeper v. Md. Dep’t of Env’t, 200 Md.App. 665, 708-09, 28 A.3d 178 (2011) (citations and internal quotation marks omitted).
In so doing, we look first to the normal, plain meaning of the language of the statute, read as a whole so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory. If the language of a statute is clear and unambiguous, we need not look beyond the statute’s provisions and our analysis ends. Where the language of the statute is ambiguous and may be subject to more than one interpretation, however, we look to the statute’s legislative history, case law, purpose, structure, and overarching statutory scheme in aid of searching for the intention of the Legislature.
Whitley v. Md. State Bd. of Elections, 429 Md. 132, 149, 55 A.3d 37 (2012) (citations and internal quotation marks omitted).
*326In accord with the above standard, we turn to the plain meaning of the subject terms in the Rules. Black’s Law Dictionary defines “suffer” as:
To allow, to admit, or to permit. It includes knowledge of what is to be done under sufferance. To suffer an act to be done or a condition to exist is to permit or consent to it; to approve of it, and not to hinder it. It implies knowledge, a willingness of the mind and responsible control or ability to prevent.
Black’s Law Dictionary 1432 (6th ed.1990) (emphasis added) (citations omitted). “Permit” is defined as: “To suffer, allow, consent, let; to give leave or license; to acquiesce, by failure to prevent, or to expressly assent or agree to the doing of an act.” Id. at 1140. Finally, Black’s Law Dictionary defines “allow” as:
The word has no rigid or precise meaning, its import varying according to circumstances or context in connection with which it is used. It may mean to bestow or assign to any one as his right or due. To approve of, accept as true, admit, concede, adopt, or fix. To grant something as a deduction or an addition; to abate or deduct; as, to allow a sum for leakage. To sanction, either directly or indirectly, as opposed to merely suffering a thing to be done; to acquiesce in; to suffer; to tolerate.
Id. at 76 (emphasis added) (citations omitted).
No Maryland appellate opinion exists regarding the meaning of these words in the context of the Liquor Board Rules. Other jurisdictions that use “suffer,” “permit,” or “allow,” in their liquor board rules are divided on whether such terms impose a strict liability standard, or whether knowledge on the part of the licensee must be proven.
Wisconsin, Oregon, and New Jersey courts have held that their states’ liquor board rules, all of which use the words “suffer,” “permit,” or “allow,” impose strict liability on the part of the licensee. In City of West Allis v. Megna, the Supreme Court of Wisconsin held that an ordinance that stated that no licensee shall “either directly or indirectly *327suffer or permit any person of either sex under the age of 21 years ... to enter or be on such licensed premises for any purpose,” imposed a strict liability standard. 26 Wis.2d 545, 133 N.W.2d 252, 253 (1965). The Court determined that “[p]roof of knowledge on the part of the tavern keeper that the patron is actually under age is not required by the statute in order to obtain a conviction,” and that such standard “is a price that the operator pays for the privilege of becoming licensed.” Id. at 254.
Similarly, the Court of Appeals of Oregon held in DK Entertainment, LLC v. Oregon Liquor Control Commission that, when interpreting an ordinance stating that “ ‘[n]o licensee or permittee will permit any unlawful activity on the licensed premises or in areas the licensee controls that are adjacent to or outside the premises,’ ” the Oregon Liquor Control Commission “may impute to the licensee the knowledge of the licensees employees.” 249 Or.App. 659, 278 P.3d 112, 113 n. 2, 114 (2012). Finally, in Division of Alcoholic Beverage Control v. Maynards Inc., the Supreme Court of New Jersey held an ordinance providing that “[n]o licensee shall allow, permit or suffer in or upon the licensed premises any unlawful possession of or any unlawful activity pertaining to” narcotics and other controlled dangerous substances imposed a strict liability standard. 192 N.J. 158, 927 A.2d 525, 536 (2007). The Court noted that “[i]t has long been the law in New Jersey that, in the context of the regulation of alcoholic beverages, ‘the word suffer ... imposes responsibility on a licensee, regardless of knowledge, where there is a failure to prevent the prohibited conduct by those occupying the premises with his authority.’ ” Id. at 538 (ellipses and italics in original).
Conversely, other courts, such as those in Colorado, California, New York, and Washington, have held that the terms “suffer,” “permit,” or “allow” require actual or constructive knowledge. In Full Moon Saloon, Inc. v. City of Loveland, the Colorado Court of Appeals held that a statute making it unlawful to, among other things, “permit the sale, serving, giving, or procuring of any alcohol beverage to or for a person *328under the age of twenty-one years” required that “some level of knowledge by the licensee must be established by the evidence.” Ill P.3d 568, 569-70 (Colo.App.2005). The Court explained:
The word “permit” connotes affirmative or knowing conduct. Thus, licensees and their employees and agents “permit” such conduct if they have actual knowledge of the violation or have constructive knowledge that it is occurring.
Our conclusion that constructive knowledge of liquor code violations is sufficient to hold a licensee responsible for permitting the violation is consistent with cases from other jurisdictions. See Spitz v. Mun. Court, 127 Ariz. 405, 621 P.2d 911 (1980) (licensee is deemed to have constructive knowledge of the age of underage buyer if licensee provides alcohol to the minor and fails to follow certain procedures); Laube v. Stroh, 2 Cal.App.4th 364, 3 Cal.Rptr.2d 779 (1992) (to suspend liquor license, evidence must be presented that licensee had either actual or constructive knowledge of activity); Pinacoteca Corp. v. Dep’t of Bus. Regulation, 580 So.2d 881 (Fla.Dist.Ct.App.[4th DCA]1991) (where activity is persistent and recurring, licensee’s knowledge of the activity may be inferred); State v. Engberg, 109 Idaho 530, 708 P.2d 935 (Ct.App.1985) (violation may be found if licensee had constructive knowledge of the prohibited activity); Town & Country Lanes, Inc. v. Liquor Control Comm’n, 179 Mich.App. 649, 446 N.W.2d 335 (1989) (licensee violated liquor license rule by failing to exercise reasonable diligence to ascertain the age of underage customer); Leake v. Sarafan, 35 N.Y.2d 83, 358 N.Y.S.2d 749, 315 N.E.2d 796 (1974) (to sustain a violation, licensee must have knowledge of the activity or the opportunity through reasonable diligence to acquire knowledge of the alleged acts); Smith v. Bd. of Liquor Control, 96 Ohio App. 396, 121 N.E.2d 920 (1954) (licensee must have actual or constructive knowledge of prohibited activity) Tex. Alcoholic Beverage Comm’n v. Sanchez, 96 S.W.3d 483 (Tex.App.2002) (to suspend liquor *329license, evidence must be presented that licensee had either actual or constructive knowledge of activity); Reeb, Inc. v. Wash. State Liquor Control Bd., 24 Wash.App. 349, 600 P.2d 578 (1979) (to “permit” a violation, licensee must have actual or constructive knowledge of the activity).
Id. at 570-71 (emphasis added).
Similarly, in Laube v. Stroh, the Court of Appeal of California “h[e]ld that a licensee must have knowledge, either actual or constructive, before he or she can be found to have ‘permitted’ unacceptable conduct on a licensed premises.” 2 Cal.App.4th 364, 3 Cal.Rptr.2d 779, 788 (1992). The Court continued: “It defies logic to charge someone with permitting conduct of which they are not aware.” Id. Finally, the Court noted that “[failure to prevent the problem from recurring, once the licensee knows of it, is to ‘permit’ by a failure to take preventive action.” Id. at 789.
Likewise, in Leake, the Court of Appeals of New York noted the following regarding the statutory words “suffer” or “permit”:
There is no particular mystery or magic in the language of the statute. This court in Matter of Migliaccio v. O’Connell [307 N.Y. 566, 122 N.E.2d 914 (1955)] defined the intent of the statute when it stated that in considering what is implied by the phrase suffer or permit as employed in the statute quoted above, we are guided by what was written for this court (per Cardozo, J.) in People ex rel Price v. Sheffield Farms [225 N.Y. 25, 121 N.E. 474 (1918) ]: Sufferance as here prohibited implies knowledge or the opportunity through reasonable diligence to acquire knowledge. This presupposes in most cases a fair measure at least of continuity and permanence.
358 N.Y.S.2d 749, 315 N.E.2d at 797 (emphasis added) (citations and internal quotation marks omitted).
Finally, in Reeb, the Court of Appeals of Washington held: The word “permit” as used in the regulation does not imply that the licensee must have permanently sanctioned the prohibited act; it refers to the licensee’s actual or con*330structive knowledge of the circumstances which would foreseeably lead to the prohibited activity. Reeb was aware of the propensity of its dancers to engage in questionable conduct and chose nevertheless to maintain topless dancing on its licensed premises. Under these circumstances, the Board could find that Reeb permitted the conduct in violation of [the Liquor Board Rules]. This violation is sufficient to support the 7-day license suspension imposed by the Board.
600 P.2d at 581 (citation omitted).
Considering the plain meaning of the words “suffer,” “permit,” and “allow,” we conclude that the use of those words in Rules 4.17 and 4.18 necessarily require that “some level of knowledge by the licensee must be established by the evidence.” Full Moon Saloon, 111 P.3d at 569. As indicated above, the definition of “suffer” expressly states that “[i]t includes knowledge of what is to be done under sufferance.” Black’s Law Dictionary at 1432. The terms “permit” and “allow” also imply knowledge of what is to be permitted or allowed. See First Nat’l Bank & Trust Co. of Port Chester v. New York Title Ins. Co., 171 Misc. 854, 12 N.Y.S.2d 703, 709 (1939) (“It has been said that every definition of ‘suffer’ and ‘permit’ includes knowledge of what is to be done under the sufferance and permission, and intention that what is done is to be done.”).
We are fully cognizant of the strong public policy considerations behind requiring a strict liability standard in the Liquor Board Rules. Unlawful or immoral activities may be associated with places where alcoholic beverages are sold. However, one of the primary purposes of the Liquor Board Rules is to clearly inform licensees of their responsibilities regarding prohibited activities so that they can conform their conduct and the conduct of their businesses to be in compliance with the Rules. Interpreting the words used in the Liquor Board Rules at variance with their plain meaning does not advance the public purpose of achieving compliance with the Rules. Although we are obligated to give deference to the Liquor *331Board’s interpretation of its Rules, see Noland, 386 Md. at 572, 873 A.2d 1145, “[a]n agency conclusion will not be upheld upon review, however, if based upon an error of law,” Hoyle, 115 Md.App. at 129, 692 A.2d 1. Accordingly, we hold that the Liquor Board erred in interpreting the words “suffer,” “permit,” and “allow” in Rules 4.17 and 4.18 to impose a strict liability standard on licensees.6
We also hold that the knowledge requirement implicit in the terms “suffer,” “permit,” and “allow” can be satisfied by proof of either actual or constructive knowledge on the part of the licensee. See Full Moon Saloon, 111 P.3d at 570. Actual knowledge is, of course, actual awareness of the prohibited activity. Actual knowledge also includes the concept of “deliberate ignorance” or “willful blindness.” See Rice v. State, 136 Md.App. 593, 604, 766 A.2d 663 (2001). In State v. McCallum, Judge Chasanow explained the meaning of this form of knowledge in a concurring opinion:
There is more than one mental state that may constitute “knowledge.” The first and highest form of “knowledge” is actual knowledge, that is, an actual awareness or an actual belief that a fact exists. A second form of “knowledge” is what has often been called “deliberate ignorance” or “willful blindness.” R. Perkins, Criminal Law, Ch. 7, § 4 at 687 (1957). The latter form of “knowledge” exists where a person believes that it is probable that something is a fact, but deliberately shuts his or her eyes or avoids making reasonable inquiry with a conscious purpose to avoid learning the truth. See 1 W. LaFave & A. Scott, Substantive Criminal Law, § 3.5 at 307 (1986), and authorities cited therein. In United States v. Jewell, 532 F.2d 697 (9th Cir.), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976), the 9th Circuit Court of Appeals noted that the *332deliberate ignorance or willful blindness form of knowledge has been accepted by leading commentators in the United States and in England. The opinion quoted from Professor Glanville Williams’ Criminal Law: The General Part, § 57 at 157, 159 (2d ed.1961), as follows:
“To the requirement of actual knowledge there is one strictly limited exception.... [T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge____The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law.”
Id. at 700.
321 Md. 451, 458-59, 583 A.2d 250 (1991) (Chasanow, J., concurring) (emphasis added).
Constructive knowledge, however, implies knowledge where a licensee should have known of the prohibited activity if reasonable care and diligence had been exercised. See Leake, 358 N.Y.S.2d 749, 315 N.E.2d at 797 (stating that “it must be demonstrated that the licensee had knowledge or the opportunity through reasonable diligence to acquire knowledge of the alleged acts”); Morgan v. Bd. of Water Works of Pueblo, 837 P.2d 300, 303 (Colo.App.1992) (stating that, if in the exercise of ordinary diligence a party should have known a fact, it will be deemed to have knowledge).
The Colorado Court of Appeals explained constructive knowledge as follows:
Constructive knowledge may be inferred if the conduct occurs openly, such that a reasonable person would observe it. If knowledge of the prohibited conduct could have been obtained through the exercise of reasonable care and diligence, constructive knowledge may be inferred.
Applying a constructive knowledge standard does not place an undue burden on the licensee because constructive knowledge requires only reasonable care and diligence and does not require extraordinary vigilance. Constructive *333knowledge means knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person.
Full Moon Saloon, 111 P.3d at 570 (citations and internal quotation marks omitted).
Nevertheless, the Liquor Board argues that Rule 4.17 is similar to Rule 4.01(a), which we held in Hoyle to impose strict liability. We disagree.
Rule 4.01(a) provides: “No licensee shall sell or furnish alcoholic beverages to any person under twenty-one (21) years of age or to any person with the knowledge that such person is purchasing or acquiring such beverages for consumption by any person under twenty-one (21) years of age.” Hoyle, 115 Md.App. at 130, 692 A.2d 1. In Hoyle, the Liquor Board ruled that Martini’s Bar had violated Rule 4.01(a) when one of its employees served alcohol to a minor. Id. at 128, 692 A.2d 1. Martini’s Bar appealed, arguing that this Court “should read a ‘due caution’ provision into the [R]ule.” Id. at 131, 692 A.2d 1. We declined to do so, and instead held that the Rule “imposes strict liability for the sale on the licensees.” Id. at 133, 692 A.2d 1.
Our holding in Hoyle is clearly distinguishable from our holding in the case sub judice. Rule 4.01(a), unlike Rule 4.17, does not use the words “suffer,” “permit,” or “allow,” which, as explained above, necessarily include an element of knowledge. Instead, Rule 4.01(a) sets forth a simple directive — “No licensee shall sell or furnish ....”, which carries no implication of knowledge.
Finally, because the word “knowingly” appears in the second independent clause (“second clause”), and not in the first independent clause (“first clause”), of Rule 4.17(b), the Liquor Board claims that such sentence construction necessarily implies a strict liability standard in the first clause. Again, we disagree.
To reiterate, Rule 4.17(b) states:
*334No licensee shall permit or suffer any person to appear in any act or other performance with breasts or the lower torso uncovered; nor shall any licensee knowingly permit or suffer his premises to be used for the conduct, exhibition or performance of an obscene act or other performance.
The first clause clearly identifies the prohibited act — any person “appearing] ... with breasts or the lower torso uncovered.” On the other hand, the second clause prohibits the performance of an “obscene act or other performance.” In our view, the word “knowingly” appears in the second clause because an element of knowledge is required to constitutionally regulate obscenity, a class of unprotected speech that is not clearly defined in First Amendment jurisprudence. See generally Miller v. California, 413 U.S. 15, 20, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (summarizing “the somewhat tortured history of the Court’s obscenity decisions”).
Accordingly, we hold that the Liquor Board erred in finding that Kougl was guilty of violating Rules 4.17(a), 4.17(b), and 4.18, because there was no evidence that Kougl had actual or constructive knowledge of his employee’s prohibited activity.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO ENTER A JUDGMENT REVERSING THE DECISION OF THE LIQUOR BOARD RENDERED ON JULY 17, 2014. COSTS TO BE PAID BY APPELLEE.
4.15 Notes & Questions (Kougl v. Board) 4.15 Notes & Questions (Kougl v. Board)
Review Questions
- What was the defendant's argument against the charges (regarding solicitation of prostitution and indecent exposure)?
- Why did the prosecution believe the provisions ought to have been read as strict-liability provisions?
- Recall State v. Nations. Does the court here adopt the same interpretation of the knowledge requirement? Could the State have shown D had constructive knowledge? Why was the argument not made?
- Do you agree with the court’s decision rejecting strict liability in this case? Consider cases in which the threat to public welfare is great, the cost of proving mental state is high, and the sanctions are minimal and not stigmatizing. When might it be worth it to require only strict liability?
- Use the following statutes when answering the questions below regarding the Kougl case:
Rule 4.15 — Sexual Practices and Obscenity
(a) A licensee may not permit the licensed premises to be used for any sexual activity. A licensee, any employee, patron or frequenter may not solicit any person for prostitution or other immoral purposes.
(b) A licensee may not permit a person to appear in an act or other performance with breasts or the lower torso uncovered. A licensee may not knowingly permit the licensed premises to be used for the conduct, exhibition, or any unlawful performance….
Rule 4.16 — Illegal Conduct
A licensee may not commit or allow the commission on the licensed premises of an act that is contrary to any federal, State or local statute, law or ordinance or that is against the public peace, safety, health, welfare, quiet, or morals.
- What was D’s defense against the charges that his establishment violated rules regarding solicitation of prostitution and indecent exposure?
- Explain the Prosecution’s argument for why these provisions ought to be read as “Strict Liability” provisions.
- Use the statute below, cited by the state, to bolster your argument:
Rule 4.01 – Minors (a) Sales to Minors - No licensee shall sell, furnish, or allow to be furnished by his/her agent or employee alcoholic beverages to any person under twenty-one (21) years of age or to any person with the knowledge that such person is purchasing or acquiring such beverages for consumption by any person under twenty-one (21) years of age.
Explain how State asked the court to interpret 4.15 (below), given its interpretation of 4.01:
Rule 4.15 — Sexual Practices and Obscenity
(a) A licensee may not permit the licensed premises to be used for any sexual activity. A licensee, any employee, patron or frequenter may not solicit any person for prostitution or other immoral purposes.
(b) A licensee may not permit a person to appear in an act or other performance with breasts or the lower torso uncovered. A licensee may not knowingly permit the licensed premises to be used for the conduct, exhibition, or any unlawful performance….
Problem: Kougl and Strict Liability
Ever since a closed-head injury left her with chronic pain, Diana has become a frequent user of painkillers. When her original prescriptions ran out, she began buying the drugs illegally from local dealers. Like many women, for years she has carried pepper spray (a tear gas spray) in her purse in the hopes that it would protect her in the event of a sexual assault. It’s been at the bottom of her purse for so long that she’d forgotten about it. Last month, police arrested her attempting to buy drugs from an undercover officer. When they searched her purse and found the pepper spray, in addition to the drug-related charge, she was charged with the crime below, a misdemeanor which may add time to her sentence. The relevant statute is as follows:
CA Penal Code Chap. 1, 22810. Notwithstanding any other provision of law, any person may purchase, possess, or use tear gas or any tear gas weapon for the projection or release of tear gas if the tear gas or tear gas weapon is used solely for self-defense purposes, subject to the following requirements:
… (b) No person addicted to any narcotic drug shall purchase, possess, or use tear gas or any tear gas weapon.
Assume that Diana hires you as her defense attorney. Answer the following questions:
1) Assuming that Diana is found to be addicted to painkillers (narcotics), explain the State’s case against her.
2) Which of the following, assuming the jury believes Diana, might provide a defense?
- Her testimony that she did not know she possessed pepper spray.
- Her testimony that she did not know she was an addict
- Her testimony that she did not know about the law against addicts possessing pepper spray.
- Her testimony that she was not negligent in carrying pepper spray because breaking the law was not unreasonable under the circumstances.
3) Reconsider the justifications for and against strict liability laws, and articulate the case for and against convicting Diana.
4) Can you reconcile the outcome you predict in Diana’s case with the outcome in Kougl? Explain.
4.16 People v. Navarro 4.16 People v. Navarro
Appellate Department, Superior Court, Los Angeles
Crim. A. No. 17137.
October 22, 1979; THE PEOPLE Plaintiff and Respondent, v. WALDO NAVARRO, Defendant and Appellant.
(Opinion by Dowds, J., with Cole, P. J., and Saeta, J., concurring.)
COUNSEL
Harland W. Braun for Defendant and Appellant.
John K. Van de Kamp, District Attorney, Donald J. Kaplan and George M. Palmer, Deputy District Attorneys, for Plaintiff and Respondent.
OPINION
DOWDS, J.
Defendant, charged with a violation of Penal Code section 487, subdivision 1, grand theft, appeals his conviction after a jury trial of petty theft, a lesser but necessarily included offense. His contention on appeal is that the jury was improperly instructed. The only facts [99 Cal. App. 3d Supp. 3] set forth in the record on appeal are that defendant was charged with stealing four wooden beams from a construction site and that the state of the evidence was such that the jury could have found that the defendant believed either (1) that the beams had been abandoned as worthless and the owner had no objection to his taking them or (2) that they had substantial value, had not been abandoned and he had no right to take them.
The court refused two jury instructions proposed by defendant reading as follows:
Defendant's A
"If one takes personal property with the good faith belief that the property has been abandoned or discarded by the true owner, he is not guilty of theft. This is the case even if such good faith belief is unreasonable. The prosecutor must prove beyond a reasonable doubt that the defendant did not so believe for you to convict a defendant of theft."
Defendant's B
"If one takes personal property with the good faith belief that he has permission to take the property, he is not guilty of theft. This is the case even if such good faith belief is unreasonable.
The prosecutor must prove beyond a reasonable doubt that the defendant did not so believe for you to convict a defendant of theft."
Instead, the court instructed the jury in the words of the following modified instructions:
Modified-Defendant's A
"If one takes personal property in the reasonable and good faith belief that the property has been abandoned or discarded by the true owner, he is not guilty of theft."
Modified-Defendant's B
"If one takes personal property in the reasonable and good faith belief that he has the consent or permission of the owner to take the property, he is not guilty of theft. [99 Cal. App. 3d Supp. 4]
"If you have a reasonable doubt that the defendant had the required criminal intent as specified in these instructions, the defendant is entitled to an acquittal."
Accordingly, the question for determination on appeal is whether the defendant should be acquitted if there is a reasonable doubt that he had a good faith belief that the property had been abandoned or that he had the permission of the owner to take the property or whether that belief must be a reasonable one as well as being held in good faith.
A recent decision by the California Supreme Court throws light on this question. In People v. Wetmore (1978) 22 Cal. 3d 318 [149 Cal. Rptr. 265, 583 P.2d 1308], defendant was charged with burglary, like theft a specific intent crime. fn. 1 The Supreme Court held that the trial court had erroneously refused to consider at the guilt phase of the trial evidence that, because of mental illness, defendant was incapable of forming the specific intent required for conviction of the crime, instead of receiving such evidence only in respect of his plea of not guilty by reason of insanity. The court disapproved dictum in People v. Wells (1949) 33 Cal. 2d 330 [202 P.2d 53] that if psychiatric reports described a defendant's insanity as well as his diminished capacity, the evidence was inadmissible to prove his lack of specific intent, stating, at pages 323-324: "In holding that defendant's psychiatric evidence could not be utilized to prove that he lacked the specific intent required for the offense of burglary, the trial court followed a dictum laid down in our decision in People v. Wells, supra, 33 Cal. 2d 330. Wells, the seminal decision which established the doctrine of diminished capacity in California law, held that 'evidence of diminished mental capacity, whether caused by intoxication, trauma, or disease, can be used to show that a defendant did not have a specific mental state essential to an offense.' (People v. Conley (1966) 64 Cal. 2d 310, 316 [49 Cal.Rptr. [99 Cal. App. 3d Supp. 5] or other essential mental state, then that evidence is inadmissible under the not guilty plea ... (P. 351.)
"As we shall explain, the Wells dictum imposes an illogical and unworkable rule which has not been followed in subsequent cases. Wells spoke of excluding evidence which tended to prove 'lack of mental capacity ... because of legal insanity.' (P. 350.) Mental incapacity does not occur 'because of legal insanity;' instead both insanity and diminished capacity are legal conclusions derived from evidence of defendant's mental condition. (See Comment (1971) 18 UCLA L.Rev. 561, 563-564, fn. 11.) Consequently, if the evidence of a defendant's mental illness indicates that the defendant lacked the specific intent to commit the charged crime such evidence cannot reasonably be ignored at the guilt trial merely because it might (but might not) also persuade the trier of fact that the defendant is insane.
"Wells' distinction between evidence that defendant did not entertain the requisite intent, which is admissible, and evidence that he could not entertain that intent, which is inadmissible, cannot be supported. '[A]s a matter of logic, any proof tending to show that a certain mental condition could not exist is relevant and should be admissible to show that it did not exist. And, of course, proof that something could not exist is the best possible evidence that it did not exist.' (Louisell & Hazard, Insanity as a Defense: The Bifurcated Trial (1961) 49 Cal.L.Rev. 805, 819.) Moreover, as Justice Kaus pointed out in People v. Steele (1965) 237 Cal. App. 2d 182, 190-191 [46 Cal. Rptr. 704], evidence which tends to prove that a defendant could not entertain a certain intent may, when subject to cross-examination, convince the trier of fact that defendant was able to entertain the intent but did not do so on the occasion of the crime. Thus, Steele concludes, the trial court cannot refuse to admit such evidence when offered to prove diminished capacity."
The court concluded, at page 327: "We therefore hold that evidence of diminished capacity is admissible at the guilt phase whether or not that evidence may also be probative of insanity. The trial court erred when, relying on the Wells dictum, it refused to consider evidence of diminished capacity in determining defendant's guilt."
The instant case, does not, of course, involve evidence of mental illness. Evidence was presented, however, from which the jury could have concluded that defendant believed that the wooden beams had been abandoned and that the owner had no objection to his taking them, i.e., [99 Cal. App. 3d Supp. 6] that he lacked the specific criminal intent required to commit the crime of theft (intent permanently to deprive an owner of his property). A similar situation existed in People v. Photo (1941) 45 Cal. App. 2d 345 [114 P.2d 71], where defendant's conviction of grand theft for the taking of certain boxes of oranges which he thought he had purchased was reversed, the Court of Appeal stating at page 353: "Felonious intent is an essence of the crime of larceny. The general rule stated in 36 C. J., section 105, page 764, is: 'If one, in good faith, takes the property of another, believing it to be legally his own, or that he has a legal right to its possession, he is not guilty of larceny, although his claim is based on a misconception of the law or of his rights under it, for although ignorance of law and honest intentions cannot shield a man from civil liability for a trespass committed by him, yet they do protect him from criminal liability, by divesting the act of the felonious intent without which it cannot be a crime. It is necessary, however, in all cases that the claim of right to be a bona fide one, and not a mere cover for a felonious taking, and must be something more than a vague impression; it must amount to an honest conviction. Knowledge of the existence of an adverse claim by another person does not negative the existence of good faith.'
"From the evidence it appears that Photo apparently took the fruit, under a claim of title in himself, and if done in good faith after receiving what he thought was legal advice though it might have been erroneous, a presumption arose in his favor that the taking lacked the elements necessary to constitute larceny."
Earlier California cases are to the same effect. In People v. Devine (1892) 95 Cal. 227 [30 P. 378], defendant's conviction of larceny was reversed. He had driven away in a wagon, without any attempt at secrecy, a number of hogs, his own and three bearing another's mark or brand. The Supreme Court pointed out: "There are cases in which all the knowledge which a person might have acquired by due diligence is to be imputed to him. But where a felonious intent must be proven, it can be done only by proving what the accused knew. One cannot intend to steal property which he believes to be his own. He may be careless, and omit to make an effort to ascertain that the property which he thinks his own belongs to another; but so long as he believes it to be his own, he cannot feloniously steal it ..." (Id. at pp. 230-231.)
In re Bayles (1920) 47 Cal. App. 517 [190 P. 1034] concerned the owner and manager of an apartment house who was convicted of larceny [99 Cal. App. 3d Supp. 7] based on evidence that she had seized a sewing machine and victrola of a former tenant under claim of lien to secure certain charges allegedly owed by the tenant. The Court of Appeal declined to decide such fine points relating to the validity of the claim of lien as whether the tenant had left the apartment sufficiently clean, stating at pages 520-521: "[E]ven though the standard of cleanliness exacted by the petitioner should be found by the jury to be an unreasonable standard, and not the standard contemplated by the agreement between the parties, yet, we think petitioner would not be guilty of grand larceny. The record discloses no evil or felonious intent upon the part of the petitioner; she was merely seeking to enforce her civil rights as she believed them to exist. Larceny is the felonious stealing, taking, carrying, leading, or driving away the personal property of another. (Sec. 484, Pen. Code.) Every taking by one person of the personal property of another, without his consent, is not larceny. Felonious intent is of the essence of the crime of larceny. (People v. Devine, 95 Cal. 227 [30 Pac. 378].) If a jury should determine that the apartment was clean, according to the standard contemplated by the parties at the time they made their agreement, at the time petitioner took possession of the goods, and that, therefore, no money was due petitioner for cleaning the same, Mr. Tucker could be amply compensated in damages for the wrongful detention of his property. (Sec. 667, Code Civ. Proc., and sec. 3336, Civ. Code.) But this question must be tried out in a civil action, and not in a criminal proceeding. (Sec. 3379, Civ. Code; sec. 3380, Civ. Code; secs. 870, 509, 510, 511 and 512, Code Civ. Proc.)"
Defendant was discharged from custody pursuant to a writ of habeas corpus.
Cases in other jurisdictions also hold that where the law requires a specific criminal intent, it is not enough merely to prove that a reasonable man would have had that intent, without meeting the burden of proof that the defendant himself also entertained it. For example, in State v. Ebbeller (1920) 283 Mo. 57. [222 S.W. 396], a conviction of knowingly receiving a stolen automobile was reversed because the court gave the following erroneous jury instruction: "'By the term "knowing" that the property was stolen is not meant absolute personal and certain knowledge on the part of the defendant that the property mentioned in the indictment had been stolen, but such knowledge and information in his possession at the time he received the same, if you believe he did receive it, as would put a reasonably prudent man, exercising ordinary caution, on his guard, and would cause such a man exercising such caution, [99 Cal. App. 3d Supp. 8]and under circumstances which you believe defendant received the property, to believe and be satisfied that the property had been stolen.'" (222 S.W. at p. 397.)
In reversing, the court pointed out the error in the instruction as follows: "It will be noticed that the instruction does permit a conviction if the facts were such as (in the opinion of the jury) would have caused a reasonably prudent person, exercising ordinary caution, to have believed that the property had been stolen at the time received.
"We are inclined to the view ... that the learned attorney representing the appellant is correct in stating that--"'The question is not what some other person would have believed and known from the circumstances attending the receipt of the property, but what did this defendant believe and know.'" (Id.)
Similarly, in Kasle v. United States (6th Cir. 1916) 233 Fed. 878 a conviction of receiving stolen goods was reversed because of error in jury instructions which the appellate court read as informing the jury that the defendant could be convicted if a reasonable and honest man of average intelligence would have known the goods were stolen under the facts existing at the time, the court stating: "The effect of such tests was to charge the accused with guilty knowledge or not upon what the jury might find would have induced belief in the mind of a man such as they were told to consider, rather than the belief that was actually created in the mind of the accused; or, at last, the accused might be condemned even if his only fault consisted in being less cautious or suspicious than honest men of average intelligence are of the acts of others. The result of the rule of the charge would be to convict a man, not because guilty, but because stupid. The issue was whether the accused had knowledge--not whether some other person would have obtained knowledge--that the goods had been stolen." (Id at p. 887)
In State v. Aschenbrenner (1943) 171 Ore. 664 [138 P.2d 911] the following instruction in a larceny case was held to be erroneous: "You are instructed that in order to convict the defendants of the crime charged, it is necessary for the state to prove beyond a reasonable doubt that the defendants had knowledge, or notice of such facts and circumstances as would have convinced a reasonable man of ordinary intelligence and observation, that estray sheep were in the Aschenbrenner flock, and if upon the whole evidence in this case you have a reasonable doubt that the facts and circumstances known to the defendants [99 Cal. App. 3d Supp. 9] (if you find any were known to them), were such that a reasonable man of ordinary intelligence and observation would have known that estray sheep were in the Aschenbrenner flock, then you should find the defendants not guilty of the crime charged.
"On the other hand, if you find from the evidence beyond a reasonable doubt that the circumstances were such as to lead a rational man, a man of ordinary intelligence and observation, to know that estray sheep were in the Aschenbrenner flock, such circumstances would be sufficient to justify you in finding that the defendants knew estray sheep were in the Aschenbrenner flock." (171 Ore. at pp. 668-669.) The Supreme Court of Oregon said: "We are of the opinion that the circuit court erred in instructing the jury that circumstances which would lead a man of ordinary intelligence and observation to know that estray sheep were in the Aschenbrenner flock 'would be sufficient to justify' it 'in finding that the defendants knew' that fact. It seldom happens that direct evidence can be produced that the accused had actual knowledge of a fact. And in the absence of direct evidence knowledge may be inferred from circumstances. The issue, however, was whether the defendants had knowledge that estray sheep were in the flock, not whether some other person would or could have obtained that knowledge under the circumstances disclosed by the evidence. It might have appeared to the jury that the defendants, or some of them, did not possess the intelligence or observation of an ordinary man, or that in a given instance they, or some of them, acted unwisely, unreasonably, imprudently or carelessly, but not with criminal intent. The instruction complained of was not only erroneous, but highly prejudicial to the defendants' rights." (v. at p. 674) The Supreme Court of Arizona, in Reser v. State (1924) 27 Ariz. 43 [229 P. 936] held erroneous a jury instruction in a receiving stolen property case setting forth a test of whether the defendant received the property "under such circumstances that a man of ordinary prudence and caution would be satisfied that it was stolen property," the court stating: "It is contended that these instructions are erroneous, because they authorize a conviction even though appellant may not have had guilty knowledge that the property was stolen. It will be observed that they do permit a verdict of guilty whether defendant's knowledge of the theft was actual or merely imputed. Under the statement that, if the facts under which the property was received by the accused were such that a man of ordinary prudence and caution would have been satisfied that it was stolen, the law imputed to the defendant knowledge of this fact, the jury's only duty on the question of guilty knowledge was to decide what an ordinarily prudent [99 Cal. App. 3d Supp. 10] and cautious person would have done under the circumstances. This was equivalent to advising the jury that, if it concluded such a man would have been satisfied the property was stolen, the law would attribute the same knowledge to the accused. It relieved the jury from the necessity of considering whether the circumstances under which the defendant received the property were such as to cause him to realize individually it was stolen, and permitted his conviction upon the jury's determination of what an ordinarily prudent and cautious man would have done under the circumstances, without taking cognizance of the fact that there was nothing to show whether the accused possessed the prudence and caution of the one by whose actions his were tested. The question for the jury was not whether the facts would have given the ordinary person knowledge of the theft, but whether they had such effect upon the defendant himself with his understanding of their significance. Many people are not as cautious and prudent as the ordinary person, hence the circumstances might have meant knowledge to him, and nothing to the accused." (229 P. at p. 937.) Other cases from other jurisdictions setting forth the same rule could be cited and we appreciate that other cases can be found in which its application is not so clear. [1a] The proper rule, it seems to us, is set forth in Perkins on Criminal Law (2d ed. 1969) at pages 940-941: "If no specific intent or other special mental element is required for guilt of the offense charged, a mistake of fact will not be recognized as an excuse unless it was based upon reasonable grounds ... [On the other hand,]because of the requirement of a specific intent to steal there is no such thing as larceny by negligence. One does not commit this offense by carrying away the chattel of another in the mistaken belief that it is his own, no matter how great may have been the fault leading to this belief, if the belief itself is genuine."
[2] La Fave and Scott, Handbook on Criminal Law (1972) sets forth at page 357 what the authors call the "...rather simple rule that an honest mistake of fact or law is a defense when it negates a required mental element of the crime ..." As an example they refer to the crime of receiving stolen property, stating "...if the defendant by a mistake of either fact or law did not know the goods were stolen, even though the circumstances would have led a prudent man to believe they were stolen, he does not have the required mental state and thus may not be convicted of the crime."
[1b] In the instant case the trial court in effect instructed the jury that even though defendant in good faith believed he had the right to [99 Cal. App. 3d Supp. 11] take the beams, and thus lacked the specific intent required for the crime of theft, he should be convicted unless such belief was reasonable. In doing so it erred. fn. 2 It is true that if the jury thought the defendant's belief to be unreasonable, it might infer that he did not in good faith hold such belief. If, however, it concluded that defendant in good faith believed that he had the right to take the beams, even though such belief was unreasonable as measured by the objective standard of a hypothetical reasonable man, defendant was entitled to an acquittal since the specific intent required to be proved as an element of the offense had not been established. fn. 3
The People's reliance on People v. Mayberry (1975) 15 Cal. 3d 143 [125 Cal. Rptr. 745, 542 P.2d 1337] is misplaced. The discussion in that case involved the propriety of an instruction on mistake of fact in respect of charges of rape and kidnaping, general intent crimes, a different question from that here presented.
The judgment is reversed.
Cole, P. J., and Saeta, J., concurred.
FN 1. Wetmore had occupied an apartment in the owner's absence and used or destroyed some of the contents, allegedly in the good faith but unreasonable belief, induced by mental illness, that he owned the apartment and its contents.
FN 2. The portion of the court's instruction reading "If you have a reasonable doubt that the defendant had the required criminal intent ... the defendant is entitled to an acquittal" is, however, correct.
FN 3. Instruction No. 4.35 in the fourth edition of California Jury Instructions--Criminal, relating to ignorance or mistake of fact, reads as follows: "An act committed or an omission made under an ignorance or mistake of fact which disproves any criminal intent is not a crime.
"Thus a person is not guilty of a crime if he commits an act or omits to act under an honest and reasonable belief in the existence of certain facts and circumstances which, if true, would make such act or omission lawful." The use note for this instruction omits the caveat found under instruction No. 4.36, relating to ignorance or mistake of law, to the effect that the instruction would be inappropriate if the mistake may negative a specific intent or other mental state which the crime requires. We think trial judges would be well advised also to eschew or modify instruction No. 4.35 in cases involving crimes requiring a specific intent or mental state.
4.17 Notes & Questions (People v. Navarro) 4.17 Notes & Questions (People v. Navarro)
Review Questions
Navarro was charged with “trespassory taking and carrying away of the personal property of another with the intent to steal the property.”
- What is the mens rea in this statute?
- Is this a general intent or a specific intent crime?
- What does the court mean when it says, “There is no such thing as larceny by negligence?”
- Summarize the debate over the jury instructions in this case. What were the trial court's instructions on mistake? What happened on appeal?
- What result if evidence showed that the D knew the beams belonged to another, but that, when he took them, he mistakenly thought they were oak, when actually they were pine?
- What result if D knew the beams were not abandoned, but thought it was legal to take things from construction sites?
- What result had this case arisen in an MPC jurisdiction (applying MPC 2.04(1))?
Problem on Mistake
(1) Ignorance or mistake as to a matter of fact or law is a defense if:
(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense;...
Sara gives Dan a clear plastic bag with white powder in it and says, “Please deliver this bag to my 9th grade friend Frank when you see him at school today.” When Dan asks what it is, Sara says “It’s baby powder.” Dan sincerely believes it is baby powder. It’s cocaine. He’s charged with “intentional delivery of a controlled substance to a minor.”
- Assuming the jury believes D’s testimony that he thought it was baby powder, will D be acquitted of the crime? Why or why not?
- Is D guilty if Sara tells D it’s legal for minors to deliver drugs to other minors, and after verifying D’s age is 15, has him take bag of cocaine to her 9th grade friend, Frank?
- Same facts as in B., except that Sara was the on-duty police officer assigned to Dan’s school.
4.18 People v. Snyder 4.18 People v. Snyder
32 Cal.3d 590
People v. Snyder
32 Cal.3d 590
[Crim. No. 22293. Supreme Court of California. October 18, 1982.]
THE PEOPLE, Plaintiff and Respondent, v. NEVA B. SNYDER, Defendant and Appellant (Opinion by Richardson, J., with Bird, C. J., Mosk and Kaus, JJ., concurring. Separate dissenting opinion by Broussard, with Newman and Reynoso, JJ., concurring.)
OPINION RICHARDSON, J.
Defendant Neva Snyder appeals from a judgment convicting her of possession of a concealable firearm by a convicted felon (Pen. Code, § 12021), based upon her 1973 conviction for sale of marijuana, a felony (former Health & Saf. Code, § 11531). Defendant contends that the trial court erred in excluding evidence of her mistaken belief that her prior conviction was only a misdemeanor. We will conclude that defendant's asserted mistake regarding her legal status as a convicted [32 Cal. 3d 592] felon did not constitute a defense to the firearm possession charge. Accordingly, we will affirm the judgment.
At trial, defendant offered to prove the following facts supporting her theory of mistake: The marijuana possession charge resulted from a plea bargain not involving a jail or prison sentence. At the time the bargain was struck, defendant's attorney advised her that she was pleading guilty to a misdemeanor. Believing that she was not a felon, defendant thereafter had registered to vote, and had voted. On one prior occasion, police officers found a gun in her home but, after determining that it was registered to her husband, the officers filed no charges against defendant.
The trial court refused to admit any evidence of defendant's mistaken belief that her prior conviction was a misdemeanor and that she was not a felon. The court also rejected proposed instructions requiring proof of defendant's prior knowledge of her felony conviction as an element of the offense charged.
Penal Code section 12021, subdivision (a), provides: "Any person who has been convicted of a felony under the laws of the ... State of California ... who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense, ..."
[1] The elements of the offense proscribed by section 12021 are conviction of a felony and ownership, possession, custody or control of a firearm capable of being concealed on the person. (People v. Bray (1975) 52 Cal. App. 3d 494, 497 [124 Cal. Rptr. 913]; People v. Neese (1969) 272 Cal. App. 2d 235, 245 [77 Cal. Rptr. 314]; People v. Nieto (1966) 247 Cal. App. 2d 364, 368 [55 Cal. Rptr. 546].) No specific criminal intent is required, and a general intent to commit the proscribed act is sufficient to sustain a conviction. (People v. Neese, supra, at p. 245; People v. McCullough (1963) 222 Cal. App. 2d 712, 718 [35 Cal. Rptr. 591].) With respect to the elements of possession or custody, it has been held that knowledge is an element of the offense. (People v. Burch (1961) 196 Cal. App. 2d 754, 770-771 [17 Cal. Rptr. 102]; People v. Gonzales (1925) 72 Cal. App. 626, 630-631 [237 P. 812].)
[2] Does section 12021 also require knowledge of one's legal status as a convicted felon? No case has so held. Penal Code section 26 provides that a person is incapable of committing a crime if he acted under a "mistake of fact" which disproves criminal intent. In this regard, the cases have distinguished between mistakes of fact and mistakes of law. As we stated in an early case: "It is an emphatic postulate of both civil and penal law that [32 Cal. 3d 593] ignorance of a law is no excuse for a violation thereof. Of course it is based on a fiction, because no man can know all the law, but it is a maxim which the law itself does not permit any one to gainsay .... The rule rests on public necessity; the welfare of society and the safety of the state depend upon its enforcement. If a person accused of a crime could shield himself behind the defense that he was ignorant of the law which he violated, immunity from punishment would in most cases result." (People v. O'Brien (1892) 96 Cal. 171, 176 [31 P. 45]; see Brown v. State Department of Health (1978) 86 Cal. App. 3d 548, 554-555 [150 Cal. Rptr. 344], and cases cited.) Accordingly, lack of actual knowledge of the provisions of Penal Code section 12021 is irrelevant; the crucial question is whether the defendant was aware that he was engaging in the conduct proscribed by that section. (People v. Norton (1978) 80 Cal. App. 3d Supp. 14, 21 [146 Cal. Rptr. 343]; People v. Howard (1976) 63 Cal. App. 3d 249, 256 [133 Cal. Rptr. 689]; People v. Mendoza (1967) 251 Cal. App. 2d 835, 843 [60 Cal. Rptr. 5].)
In the present case, defendant was presumed to know that it is unlawful for a convicted felon to possess a concealable firearm. (Pen. Code, § 12021.) She was also charged with knowledge that the offense of which she was convicted (former Health & Saf. Code, § 11531) was, as a matter of law, a felony. That section had prescribed a state prison term of from five years to life, and the express statutory definition of a "felony" is "a crime which is punishable with death or by imprisonment in the state prison." (Pen. Code, § 17, subd. (a).)
Thus, regardless of what she reasonably believed, or what her attorney may have told her, defendant was deemed to know under the law that she was a convicted felon forbidden to possess concealable firearms. Her asserted mistake regarding her correct legal status was a mistake of law, not fact. It does not constitute a defense to section 12021.
None of the California cases relied on by defendant is apposite here. People v. Hernandez (1964) 61 Cal. 2d 529 [39 Cal. Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092], and People v. Mayberry (1975) 15 Cal. 3d 143 [125 Cal. Rptr. 745, 542 P.2d 1337], each involved mistakes of fact, not law. In Hernandez, the mistake concerned the age of the alleged victim of a statutory rape. In Mayberry, defendant erred in assuming that the adult victim of forcible rape consented to his acts. People v. Vogel (1956) 46 Cal. 2d 798 [299 P.2d 850], involved the good faith belief of a defendant charged with bigamy that he is free to remarry. We were careful to explain that defendant's mistake was a factual one: "We have concluded that defendant is not guilty of bigamy, if he had a bona fide and reasonable belief that facts existed that left him free to remarry." (Id., at p. 801; italics [32 Cal. 3d 594] added.) Moreover, Vogel characterized bigamy as a crime which "has been regarded for centuries as ... involving moral turpitude, ..." Obviously a bona fide belief that one is free to remarry nullifies the moral opprobrium attached to the charge. On the other hand, being an ex-felon in possession of a concealable firearm, while illegal, hardly stamps the person charged as a moral leper. His belief that he is not a felon thus does not affect the criminality of his conduct.
Our conclusion is confirmed by federal cases interpreting a similar federal statute forbidding possession of a firearm by one convicted of a felony. (18 U.S.C.A. Appen. § 1202(a).) The only element of the federal offense which is not found in section 12021 of the Penal Code is an effect upon "commerce." (See United States v. Bass (1971) 404 U.S. 336, 347-349 [30 L. Ed. 2d 488, 496-497, 92 S. Ct. 515].) The federal statute has been uniformly interpreted as requiring only that the defendant was in fact a convicted felon, and not that he actually knew he was a felon. (United States v. Locke (9th Cir. 1976) 542 F.2d 800, 801; United States v. Mathews (9th Cir. 1975) 518 F.2d 1296; United States v. Crow (9th Cir. 1971) 439 F.2d 1193, 1196.) As stated in Locke, "Because the crimes here charged do not require a specific intent [citation], the fact that appellant may have been advised by a public defender that he was not a convicted felon, has no relevance." (P. 801.)
Defendant relies primarily upon People v. Bray, supra, 52 Cal.App.3d at p. 494, but that case is distinguishable. There defendant pleaded guilty in Kansas to being an accessory before the fact and was placed on two years' summary probation, which he successfully completed. When he subsequently sought to register to vote, he filled out an explanatory form referring to a Kansas offense, and indicating that he was uncertain whether he had been convicted of a felony. He was permitted to vote. Seeking employment as a security guard, he stated that he had not been convicted of a felony but described the circumstances of his arrest and probation. The Bureau of Collection and Investigative Services registered him as a guard. On several other job applications he indicated his uncertainty as to his status while fully setting forth the circumstances of his arrest and probation.
In Bray, the court concluded that under these unusual circumstances the trial court erred in refusing to instruct on mistake or ignorance of fact and knowledge of the facts which make the act unlawful. (52 Cal.App.3d, at p. 499.) The court cautioned, however, that its decision "should not be interpreted to mean instructions on mistake or ignorance of fact and knowledge of the facts are required every time a defendant claims he did not know he was a felon .... It is only in very unusual circumstances such as these that the giving of these instructions is necessary." (Ibid.) [32 Cal. 3d 595]
In the present case, unlike Bray, defendant made no attempt to inform government officials of the circumstances of her conviction or to seek their advice regarding her correct legal status. (Some authorities have suggested that reliance upon the erroneous advice of governmental authorities might constitute an exception to the general rule that a mistake of law is no defense. See Perkins on Criminal Law (2d ed. 1969) p. 938; A.L.I. Model Pen. Code (Proposed Official Draft 1962) § 2.04(3)(b).)
We conclude that the trial court properly excluded evidence of defendant's asserted mistake regarding her status as a convicted felon.
The judgment is affirmed.
Bird, C. J., Mosk J. and Kaus, J. concurred.
BROUSSARD, J.
I dissent.
The two elements of a violation of Penal Code section 12021 are felony status and possession of a concealable firearm. While no specific criminal intent is required, a general criminal intent should be required as to both elements in accordance with long-settled rules of statutory interpretation, and an honest and reasonable mistake as to either element of the offense, however induced, should negate the requisite general criminal intent. Defendant's testimony if believed would have established an honest and reasonable mistaken belief that her prior offense was not a felony but a misdemeanor, and it was prejudicial error to refuse to admit the evidence and to refuse instructions on the mistake doctrine.
The majority have adopted a special strict liability rule as to section 12021, holding that a felon is charged with knowledge of his status and that an honest and reasonable mistaken belief as to the nature of the conviction is not a defense unless apparently it is induced or corroborated in whole or in part by governmental conduct. The traditional and longstanding defense of mistake negating criminal intent should not be limited to situations where the mistake is induced or corroborated by government officials. Irrebutable presumptions of knowledge are not favored in the criminal law, and because the source of an honest and reasonable mistake does not affect the question of the existence of criminal intent, we should not accept the government source limitation.
During a lawful search of defendant and her husband's home in 1979, officers found one loaded handgun and two other handguns which were partially disassembled. In 1973 she had been convicted upon a guilty plea of sale of marijuana, a felony. (Former Health & Saf. Code, § 11531.) [32 Cal. 3d 596]
Defendant sought to testify that she believed that her marijuana possession conviction had been for a misdemeanor rather than a felony. She offered to testify that she had not been sentenced to jail or prison but was on probation for two years, that her attorney told her at the time of the plea bargain that she was pleading guilty to a misdemeanor, and that believing she was not a felon she had since registered to vote and voted. She also offered to testify that on a prior occasion, officers found a pistol in her home but that after determining the gun was registered to her husband, no charges were filed for possession of the gun. Other charges were filed but dismissed. Her husband had also been convicted in 1973 of the same marijuana charge.
The trial court refused to admit the evidence of defendant's mistaken belief that the prior conviction was a misdemeanor and that she was not a felon. The court also rejected offered instructions to require knowledge of a prior felony conviction as an element of the offense, and to define "knowingly," to explain the effect of ignorance or mistake of fact disproving criminal intent. (CALJIC Nos. 1.21, 4.35, 3.31.5 [paraphrased].) fn. 1 The instructions, if given, would have required the jury to find that defendant knew she was a felon as an element of the crime.
Penal Code section 12021, subdivision (a) provides: "Any person who has been convicted of a felony under the laws of the ... State of California ... who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense, ..."
We recently recognized our duty to reconcile the provisions of section 12021 with other Penal Code provisions in People v. King (1978) 22 [32 Cal. 3d 597] Cal.3d 12, 23 [148 Cal. Rptr. 409, 582 P.2d 1000]. In that case, a felon during a melee involving violence by intruders took a pistol and fired it. We held that it was error to refuse to instruct the jury on self-defense and defense of others. (22 Cal.3d at p. 26.) We reasoned that the section 12021 prohibition of possession by a felon of a concealable firearm must be reconciled with the statutory provisions of the Penal and Civil Codes permitting any person the right to use force in defense of self or others. (22 Cal.3d at p. 23.)
In the instant case we are similarly called upon to reconcile section 12021 with Penal Code sections 26 and 20.
Penal Code section 26 provides generally that a person is incapable of committing a crime when the act was committed under a mistake of fact disproving any criminal intent. Section 20 of that code provides: "In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.
"The word 'intent' in section 20 means 'wrongful intent.' (See People v. Vogel (1956) 46 Cal. 2d 798, 801, fn. 2 [299 P.2d 850].) 'So basic is this requirement [of a union of act and wrongful intent] that it is an invariable element of every crime unless excluded expressly or by necessary implication.' (Id., at p. 801.)" (People v. Mayberry (1975) 15 Cal. 3d 143, 154 [125 Cal. Rptr. 745, 542 P.2d 1337].)
At common law an honest and reasonable belief in circumstances which, if true, would make the defendant's conduct innocent was held to be a good defense. (People v. Hernandez (1964) 61 Cal. 2d 529, 535 [39 Cal. Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092].) The concept of mens rea, the guilty mind, expresses the principle that it is not conduct alone but conduct accompanied by certain mental states which concerns, or should concern the law. While in some cases, culpability had been completely eliminated as a necessary element of criminal conduct, the court has moved away from imposition of criminal liability in the absence of culpability where the governing statute, by implication or otherwise, expresses no legislative intent or policy to be served by strict liability. (Id., at pp. 532-533.)
The elements of the offense proscribed by section 12021 are conviction of a felony and ownership, possession, custody or control of a firearm capable of being concealed on the person. (People v. Bray (1975) 52 Cal. App. 3d 494, 497 [124 Cal. Rptr. 913]; People v. Neese (1969) 272 Cal. App. 2d 235, 245 [77 Cal. Rptr. 314]; People v. Nieto (1966) 247 Cal. App. 2d 364, 368 [55 Cal. Rptr. 546].) While no specific criminal intent is required, a general intent to commit the proscribed act is [32 Cal. 3d 598] necessary. (People v. Neese, supra, 272 Cal. App. 2d 235, 245; People v. McCullough (1963) 222 Cal. App. 2d 712, 718 [35 Cal. Rptr. 591].) As to the element of possession or custody, it has been held that knowledge is an element of the offense. (People v. Burch (1961) 196 Cal. App. 2d 754, 770-771 [17 Cal. Rptr. 102]; People v. Gonzales (1925) 72 Cal. App. 626, 630-631 [237 P. 812].)
There does not appear to be any provision in section 12021 by implication or otherwise indicating legislative intent or policy to be served by refusing to apply the general criminal intent requirement to both of the elements of the offense. The Attorney General argues that, because knowledge of possession or custody of the gun are essential to conviction, strict liability would not result from holding that knowledge of a felony conviction is irrelevant. While under such construction the offense would not involve strict liability as to those who were unaware that they possessed a handgun, it would impose strict liability upon those who were unaware of their felony convictions and could legally possess handguns in the absence of conviction. The language of section 12021 sets forth both elements of the offense in parallel construction, and there is no basis in the language or grammatical construction of the statute warranting a distinction between the two elements with respect to the mens rea requirement. In the absence of any provision reflecting legislative intent or policy to establish strict liability, the mens rea requirement is applicable to the felony conviction element of the offense as well as the possession and custody element. (People v. Bray, supra, 52 Cal. App. 3d 494, 498-499; cf. People v. Mendoza (1967) 251 Cal. App. 2d 835, 843 [60 Cal. Rptr. 5].)
To hold otherwise is contrary to the settled California rule that a mens rea requirement is an "invariable" element of every crime unless excluded expressly or by necessary implication. People v. Mayberry, supra, 15 Cal. 3d 143, 154; People v. Vogel, supra, 46 Cal. 2d 798, 801.) Having established the rule, we must assume the Legislature is aware of it and acting in accordance with it, and the absence of any provision to establish strict liability must be read as reflecting legislative intent to require wrongful intent.
The majority rely upon federal cases interpreting a federal statute forbidding possession of a firearm by one convicted of a felony or certain misdemeanors. (18 U.S.C. Appen. § 1202(a)(1); United States v. Locke (9th Cir. 1976) 542 F.2d 800, 801; United States v. Mathews (9th Cir. 1975) 518 F.2d 1296; United States v. Crow (9th Cir. 1971) 439 F.2d 1193, 1196.) In particular they rely upon the following statement from Locke: "Because the crimes here charged do not require specific intent, United States v. Quiroz, 449 F.2d 583, 585 (CA9 1971), the fact that [32 Cal. 3d 599] appellant may have been advised by a public defender that he was not a convicted felon, has no relevance." (542 F.2d at p. 801.) (Maj. opn., ante, p. 595.)
None of the federal cases cite or discuss statutes comparable to Penal Code sections 20 and 26. Concluding that there is no scienter or mens rea requirement, the courts reason that the crime is a statutory offense rather than a common law offense and that as to statutory offenses there ordinarily is no scienter requirement in the absence of express provision therefor. (United States v. Crow, supra, 439 F.2d 1193; United States v. Quiroz, supra, 449 F.2d 583, 585.) Penal Code sections 20 and 26 are part of our statutory law, and there is no basis for a conclusion that they apply only to common law offenses and not to statutory offenses. Because of those statutes, we have adopted a rule of construction directly contrary to the federal rule, i.e., wrongful intent "is an invariable element of every crime unless excluded expressly or by necessary implication." (People v. Vogel, supra, 46 Cal. 2d 798, 801.) Just as the federal courts adhere to their rules as to the effect of congressional silence, we should adhere to the legislative direction in sections 20 and 26 and our rules as to legislative silence. Having established the ground rules for statutory interpretation, we may not abrogate them on the basis of federal cases applying contrary ground rules.
In determining whether a defendant's mistaken belief disproves criminal intent pursuant to Penal Code section 26, the courts have drawn a distinction between mistakes of fact and mistakes of law. Criminal intent is the intent to do the prohibited act, not the intent to violate the law. (1 Witkin, Cal. Crimes (1963) § 148, p. 141.) "It is an emphatic postulate of both civil and penal law that ignorance of a law is no excuse for a violation thereof. Of course it is based on a fiction, because no man can know all the law, but it is a maxim which the law itself does not permit any one to gainsay .... The rule rests on public necessity; the welfare of society and the safety of the state depend upon its enforcement. If a person accused of a crime could shield himself behind the defense that he was ignorant of the law which he violated, immunity from punishment would in most cases result." (People v. O'Brien (1892) 96 Cal. 171, 176 [31 P. 45].) Accordingly, lack of knowledge of the provisions of Penal Code section 12021 is irrelevant; the crucial question is whether the defendant was aware that he was engaging in the conduct proscribed by that section. (People v. Howard (1976) 63 Cal. App. 3d 249, 256 [133 Cal. Rptr. 689]; People v. Mendoza, supra, 251 Cal. App. 2d 835, 843.)
While mistake as to whether the conduct is violative of a statute is not a defense, a mistaken impression as to the legal effect of a collateral matter [32 Cal. 3d 600] may mean that a defendant does not understand the significance of his conduct and may negate criminal intent. When the victim's status is an element of the crime, a mistaken belief as to the status has been held a defense in several decisions by this court. In People v. Hernandez, supra, 61 Cal. 2d 529, 532 et seq., it was held that a reasonable and honest belief that the prosecutrix was 18 years or more of age would be a defense to a charge of statutory rape, negating the requisite mental intent. Similarly, in People v. Atchison (1978) 22 Cal. 3d 181, 183 [148 Cal. Rptr. 881, 583 P.2d 735], it was held that a reasonable and honest belief that the victim was 19 years of age was a defense to charges of annoying or molesting a child under age 18 and of contributing to the delinquency of a minor. And in People v. Mayberry, supra, 15 Cal. 3d 143, 153-158, it was held that a mistaken belief that the prosecutrix had consented would be a defense to a charge of forcible rape and kidnaping.
This court has also held that criminal intent may be negated by defendant's reasonable and bona fide but erroneous belief as to his status. In People v. Vogel, supra, 46 Cal. 2d 798, 801 et seq., the defendant was prosecuted for bigamy, and it was held that the defendant's bona fide and reasonable belief that his first wife had divorced him and remarried would be a good defense. The court reasoned in part that it would not be reasonable to hold "that a person is guilty of bigamy who remarries in good faith in reliance on a judgment of divorce or annulment that is subsequently found not to be the 'judgment of a competent court' (Pen. Code, § 282), particularly when such a judgment is obtained by the former husband or wife of such person in any one of the numerous jurisdictions in which such judgments can be obtained. Since it is often difficult for laymen to know when a judgment is not that of a competent court, we cannot reasonably expect them always to have such knowledge and make them criminals if their bona fide belief proves to be erroneous." (46 Cal.2d, at p. 804; see People v. Roessler (1963) 217 Cal. App. 2d 603, 604 [31 Cal. Rptr. 684] (defendant remarried after service of the interlocutory decree of divorce but before entry of final decree).) The court also pointed out that at common law an honest and reasonable belief in circumstances which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense. (46 Cal.2d, at p. 805.)
People v. Flumerfelt (1939) 35 Cal. App. 2d 495, 497-498 [96 P.2d 190], also illustrates the distinction between mistake of fact and mistake of law. In that case, the defendant was charged with selling corporate securities without a permit. The defendant claimed that before she sold the securities, her attorney told her that a permit to sell had been obtained, and it was held that her honest but mistaken belief that a permit to sell had been [32 Cal. 3d 601] issued constituted a defense. However, the court distinguished the situation where counsel erroneously advises that the instrument to be sold is not a security, pointing out that a mistake as to the legal consequences of the act which constitutes a violation of the statute would not be a defense. (35 Cal.App.2d at pp. 498-499; see 1 Witkin, Cal. Crimes, supra, § 151, p. 145.)
The O'Brien, Hernandez, Atchison, Mayberry, Vogel and Flumerfelt cases, read together, make clear that a mistake of law is one premised on ignorance of the terms of the statute which the defendant is charged with violating. However, when the defendant reasonably and honestly believes that the statute is not applicable to him or that he has complied with it, there is a mistake of fact. There is a mistake of fact even though the matter as to which the defendant is mistaken is a question of law. The questions of age in Hernandez and Atchison were matters resolved as a matter of law as was marital status in Vogel and the nonissuance of a permit in Flumerfelt.
The Court of Appeal has held that a mistaken belief that a conviction was not a felony conviction could negate criminal intent in a prosecution for violation of Penal Code section 12021. (People v. Bray, supra, 52 Cal. App. 3d 494, 497-499.) Bray graphically illustrates the injustice which results from holding that a reasonable and good faith belief of lack of felony status is not a defense. Bray pled guilty in Kansas to being an accessory before the fact and was placed on two years summary probation which he successfully completed. When he subsequently sought to register to vote, he filled out an explanatory form referring to the Kansas offense, indicating he was uncertain whether he had been convicted of a felony. He was permitted to vote. Seeking employment as a security guard, he stated he had not been convicted of a felony but set forth the circumstances of his arrest and probation. The Bureau of Collection and Investigative Services registered him as a guard. On several other job applications he indicated his uncertainty as to his status setting forth the circumstances of his arrest and probation. At Bray's trial for violation of section 12021, the prosecutor recognized "'in even our own jurisdiction, let alone a foreign jurisdiction such as the State of Kansas, it's extremely difficult to determine whether a sentence was a felony or a misdemeanor.'" (52 Cal.App.3d, at p. 498.)
In Bray, it was concluded that in the circumstances the trial court erred in refusing to instruct on mistake or ignorance of fact and knowledge of the facts which make the act unlawful. (52 Cal.App.3d, at p. 499.)
The Court of Appeal stated that its decision should not be interpreted to mean instructions on mistake or ignorance of fact or knowledge of the facts are required every time a defendant claims he did not know he was a felon. [32 Cal. 3d 602](Id.) Relying on that statement, the majority concludes that Bray should be limited to situations where a state agency has misled the defendant. The statement relied upon merely reflects that only in rare cases will there be a basis for a reasonable belief that a felony conviction was a misdemeanor conviction. The reasoning in Bray applies to any case where there is a reasonable and good faith mistake and is in accord with the common law and our statutory rule. The source of the reasonable and good faith mistake does not affect the existence of criminal intent. fn. 2
Had the trial court in the instant case admitted the offered evidence and given the requested instruction, the jury could properly have concluded that defendant had a reasonable and good faith belief that her conviction was not a felony conviction. She was granted probation without jail or prison sentence. Her attorney had advised her that the offense was a misdemeanor, fn. 3 and there were additional circumstances reflecting a good faith belief.
The errors in excluding the offered evidence and refusing the offered instructions denied defendant the right to have the jury determine substantial issues material to her guilt and require reversal of the conviction. (People v. King (1978) 22 Cal. 3d 12, 27 [148 Cal. Rptr. 409, 582 P.2d 1000]; People v. Mayberry, supra, 15 Cal. 3d 143, 157-158.)
I would reverse the judgment.
Newman, J., and Reynoso, J., concurred.
FN 1. CALJIC No. 1.21: "'Knowingly -- Defined
"The word 'knowingly', as used in my instructions, imports only a knowledge of the existence of the facts in question, when those facts are such as bring the act or omission within the provision of the law. The word does not require in its meaning any knowledge of the unlawfulness of such act or omission."
CALJIC No. 4.35: "Ignorance or Mistake of Fact
"An act committed or an omission made under an ignorance or mistake of fact which disproves any criminal intent is not a crime. [¶] Thus a person is not guilty of a crime if he commits an act or omits to act under an honest and reasonable belief in the existence of certain facts and circumstances which, if true, would make such act or omission unlawful."
CALJIC No. 3.31.5, as paraphrased: "In violation of the crime charged in Section 12021 of the Penal Code the information namely, the possession of a concealed weapon by an ex-felon, there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator and unless such mental state exists the crime to which it relates is not committed. [¶] In the crime of 12021 of the Penal Code, the necessary mental state is knowledge on the part of the Defendant that he has been previously convicted of a felony offense."
FN 2. I am perplexed by the majority's apparent limitation of the mistake doctrine to would-be "moral leper[s]." The more heinous the crime the more reason to limit defenses, and the majority's suggested limitation appears to turn the usual relationship between law and morality upside down.
FN 3. It has been held that advice of counsel that prohibited conduct is lawful is not a defense because it would place the advice of counsel above the law. (See 1 Witkin, Cal. Crimes, supra, § 150, pp. 143-144.) Counsel's advice in the instant case is relevant to establish good faith; it does not in and of itself establish a defense.
4.19 Notes & Questions (People v. Snyder) 4.19 Notes & Questions (People v. Snyder)
Mistake of Law
Review Questions
The following is the operative statute in People v. Snyder:
CA Penal Code section 12021, subdivision (a): "Any person who has been convicted of a felony under the laws of the ... State of California ... who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense...."
- What does the Court identify as the material elements in this statute?
- What result if the defendant didn’t know she had a gun in her purse?
- What is the defendant's mistake in this case, and what was the trial court's rationale for excluding her testimony regarding it?
- The Court understands the defendant's mistake as a mistake of law. Why? Might you argue that her mistake was actually a mistake of fact?
- How, do you think, the defense lawyer may have tried to use People v. Vogel, cited in the opinion, to support their case?
- How does the majority distinguish People v. Vogel here?
- Explain the dissent’s position. (Consider how the majority concedes that prior, binding precedent interprets “possession” as requiring the state to prove knowledge.)
- What result if, rather than relying on her lawyer’s declaration that she had been convicted only of a misdemeanor, the defendant could show that it was her judge who had told her it was a misdemeanor?
- Finally, what result in People v. Snyder if it arose in MPC land?
(HINT: remember to apply all of the MPC rules for interpreting statutes lacking mens rea. Do you have enough information to answer this question? See below).
MPC 2.04 (1) Ignorance or mistake as to a matter of fact or law is a defense if:
(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; ...
“MPC” Penal Code section 12021(a): "Any person who has been convicted of a felony under the laws of the ... Model Penal Code Land ... who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense...."
4.20 Mens Rea Problems 4.20 Mens Rea Problems
Mens Rea Problems
Use the following criminal statutes to determine what crimes, if any, might apply to the hypotheticals posed below
S 140.17 Criminal trespass in the first degree.
A person is guilty of criminal trespass in the first degree when he knowingly enters or remains unlawfully in a building that is the property of another.
S 140.10 Theft
A person is guilty of theft if he unlawfully takes the property of another with the purpose to deprive him thereof.
S 140.20 Burglary in the third degree.
A person is guilty of burglary in the third degree when he knowingly enters a building with intent to commit a crime therein.
S 140.25 Burglary in the second degree.
A person is guilty of burglary in the second degree when he knowingly enters a building with intent to commit a crime therein, and when:
1. In effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime is armed with explosives or a deadly weapon;
or
2. The building is a dwelling.
S 140.35 Possession of burglar’s tools.
A person is guilty of possession of burglar`s tools when he possesses any tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses involving forcible entry into premises, … under circumstances evincing an intent to use or knowledge that some person intends to use the same in the commission of an offense of such character.
Problem 1:
Sam has agreed to feed his friend's dog when she is away. Forgetting the address of her house, he enters a stranger's house by mistake. Looking around and seeing some money lying on a table, Sam takes it and leaves. Which of the above crimes, if any, might Sam have committed?
Problem 2:
Fred, looking for something of value to steal, breaks into what he takes to be an uninhabited house under construction and starts looking around. He is surprised to find Owen, the owner, living there. Which of the above crimes, if any, might Fred have committed?
Problem 3:
Bored one night, Jane and Larry break into the local mall after closing, as they later say, "just for kicks." But unbeknownst to Jane, Larry has placed explosives in Jane's backpack. Which of the above crimes, if any, might Jane have committed?
Problem 4:
Mags is holding a crowbar, and says to an undercover officer, "Here's what my buddy Jack uses when he's short on cash." When arrested, Mags says, "How can I be charged -- who knew that holding a crowbar was a crime?" Is Mags right?
4.21 A Final Note on General Intent vs. Specific Intent 4.21 A Final Note on General Intent vs. Specific Intent
What you should keep in mind as you approach the bar exam
One commits a crime with “general intent” by acting voluntarily with the knowledge that they are committing a prohibited act. (Example: Battery.) By contrast, one acts with “specific intent” when one, in addition to acting knowingly, desires the specific outcome or result of the act. Here, prosecutors bear an additional burden of proving the defendant intended their actions to result in the specified crime. Many crimes are “specific intent” crimes.
First major point: general intent is the exception, not the rule. There are very few examples of modern “general intent” statutes . It's a holdover from common law. It will end up mattering for a few special cases, and when we study mistake. The overwhelming majority of statutes, however, are going to be specific-intent statutes.
When encountering a statute, ask the following questions:
- Has a mens rea been specified in the statute?
To answer this question, look for adverbs such as knowingly, purposely, recklessly, maliciously, etc., or phrases like "with intent to commit a felony" or "with intent to distribute." If you find these words or phrases, the statute is a specific intent statute.
Note--we use the phrase "has a mens rea been specified" because the mens rea itself need not require “intent” (or what the MPC calls “purpose”—that an individual desire the outcome or the conduct). To illustrate: a crime with the mens rea of “reckless” would mean that you don't intend the outcome, but you would nevertheless be guilty if you were simply aware of (and disregarded) the risk. This statute is a specific intent statute because a mens rea has been specified. It is the same with a negligent state of mind. For statutes with a mens rea of “reckless” or “negligent,” you do not need to intend the ultimate result of your recklessness or your negligence, you just need to be negligent or reckless given your knowledge of the possibility that such a result may occur.
If there is nothing specifying a state of mind in the statute, there are two possibilities: the statute is a strict liability statute or a general intent statute. Asking the next few questions will clarify this further.
- Is the statute regulatory? Of recent vintage? Targeting modern harms? Malum prohibitum? Is the punishment moderate?
These are some indicators of strict liability. There's no mens rea required, but the statute is only moderately punished (by a small fine, say). These statutes are likely to be strict liability statutes.
- Was the prohibited conduct prohibited at common law? Does it target behavior that is malum in se?
These would be indicators of a general intent crime. The classic examples of general intent crimes are battery and rape statutes WITHOUT A SPECIFIED MENS REA. We highlight this to underscore the fact that general intent isn't inherent in crimes themselves, but only in statutes. That is, if you have a rape or battery statute that doesn't specify a mens rea, it is likely to be a general intent statute. But if you have a rape or battery statute that has a specified mens rea, common law rules don't matter.
The difference? Consider the way the rule is phrased in the below examples:
| General Intent Statute | Specific Intent Statute |
|
"Sexual intercourse, with a woman not his wife, is rape." |
"Sexual intercourse, with a woman not his wife, with the knowledge that consent has not been given, is rape." |
This is a very murky area of the law. The best we can do for you is this: think about these offenses as being malum in se (literally, bad in themselves, e.g. adultery is bad, hitting someone is bad). You have acted voluntarily with a morally blameworthy mindset--you had sex, you tried to hit--so you need not have intended the outcome (to rape or injure someone). You have, essentially, intended to do something bad, so it's OK to punish you for what you actually did rather than what you may (or may not) have thought you were doing. General intent means, essentially, that you acted voluntarily, so it tends to collapse with actus reus here--but it usually only applies to these malum in se kinds of actions.
Finally:
- Is it a famous strict liability carveout?
Statutory rape is the classic example of a strict liability crime. (Don't ask how it is philosophically consonant with rape being general intent. Just know that it's strict liability.) You need not intend to have sex with someone under the age of consent, even though it is punished with severe consequences. We punish people for mistakes in this realm.