State v. Sargent

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                                No. 90-037

State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Charles A. Sargent                           Unit No. 2, Chittenden Circuit

                                             March Term, 1991

George T. Costes, J.

William Sorrell, Chittenden County State's Attorney, Burlington, and Pamela
  Hall Johnson, Department of State's Attorneys, Montpelier, for plaintiff-

Kenneth Schatz, Acting Defender General, and Anna Saxman, Appellate
  Attorney, Montpelier, for defendant-appellant

PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

     ALLEN, C.J.   Defendant appeals from his kidnapping conviction under 13
V.S.A. { 2401, repealed by 1989, No. 293 (Adj. Sess.), { 8. (FN1) He contends
that the trial court erroneously instructed the jury on the intent required
for conviction under { 2401.  We agree, and reverse and remand for a new
     The trial court's instructions on intent were as follows:
         [T]he State must prove that Mr. Sargent intended to
         confine Meg Howard.  In this regard the State must prove
         either, one, that Mr. Sargent consciously desired to
         physically confine Meg Howard against her will, or,
         second, Mr. Sargent knew or should have known at the
         time of the incident that his actions were almost
         certain to cause the physical confinement of Meg Howard
         against her will.  This means that to find the Defendant
         guilty of kidnapping, you must find that he acted know-
         ingly or purposefully with regard to his actions, which
         constituted forcibly confining the victim, Meg Howard.

              It is sufficient for the prosecution to prove
         either that the Defendant consciously desired the
         result, or that he knew or should have known that the
         result is practically certain to follow from his
         conduct. (Emphasis added).

At the charge conference defendant objected to the "should have known"
language.  He argued that its inclusion erroneously changed what was
properly a subjective inquiry into an objective one.  The trial court
declined to change the instruction, and the jury returned a verdict of
     Section 2401's intent requirement was explored in State v. Audette, 149
Vt. 218, 543 A.2d 1315 (1988).  In that case the Court overturned a kidnap-
ing conviction because the jury instructions did not contain an intent
requirement.  While recognizing that the pertinent clause of { 2401 did not
expressly provide that intent is required, the Court noted that the use of
the words "forcibly" and "secretly" indicated that an element of intent is
indeed a necessary ingredient of the offense.  Audette, 149 Vt. at 220, 543 A.2d  at 1316.  Further, the Court reiterated that "'one of the criminal
law's most basic principles [is that] a person is not criminally liable for
causing a bad result if he or she did not have some culpable mental state
with respect to that result.'"  Id. at 221, 543 A.2d  at 1316 (quoting State
v. Doucette, 143 Vt. 573, 580, 470 A.2d 676, 681 (1983)).  The pivotal
factor in the determination that { 2401 required an element of intent was
the severity of the punishment provided for the crime.  A person convicted
under { 2401 was subject to a penalty of up to twenty-five years in prison.
Accordingly, the Court held that

          [b]ecause the Legislature could not have intended to
          subject a person to a possible 25 year jail sentence for
          negligently or recklessly confining a person against her
          will, and since statutes should be construed as to avoid
          absurd or unjust results, we find that 13 V.S.A. { 2401
          requires purposeful or knowing action by defendant to
          forcibly restrain his victim in cases where the victim
          is confined against her will.

Audette, 149 Vt. at 222, 543 A.2d  at 1317 (citation omitted).
     The issue before us today is whether the "should have known" language
contained in the jury instructions is consistent with Audette's holding that
{ 2401 requires that a defendant act purposefully or knowingly.  We hold
that it is not.  While the "should have known" language appears in dicta in
Audette itself, a closer examination of Audette makes clear that the inquiry
into defendant's intent is a subjective one.  Whether a defendant acted
knowingly depends on what his or her state of mind actually was, not what it
should have been.
     One indication of this is the citation in Audette to the Model Penal
Code immediately following the enunciation of the "purposeful or knowing"
standard.  149 Vt. at 222, 543 A.2d  at 1316.  The Model Penal Code defines
"knowingly" as a subjective inquiry.  A person acts knowingly when "he is
aware that it is practically certain that his conduct will cause such a
result."  Model Penal Code { 2.02(2)(b)(ii) (1985).  As the comment to this
section explains, "both 'purposefully' and 'knowingly' . . . are meant to
ask what, in fact, the defendant's mental attitude was.  It was believed to
be unjust to measure liability for serious criminal offenses on the basis of
what the defendant should have believed or what most people would have
intended."  Id. comment 2, at 235.  Within the Model Penal Code's hierarchy
of degrees of culpability, only negligence is an objective inquiry.  Model
Penal Code { 2.02(2)(d) (1985) (person acts negligently "when he should be
aware of a substantial and unjustifiable risk").
     A further indication that { 2401's intent inquiry is subjective arises
from the repeated contrast in Audette between "purposefully or knowingly"
and "recklessly or negligently."  Section 2401 was interpreted as requiring
the higher degrees of culpability because, as quoted above, "the
Legislature could not have intended to subject a person to a 25 year jail
sentence for negligently or recklessly confining a person against her will."
Audette, 149 Vt. at 222, 543 A.2d  at 1317.  Implicit in Audette's rejection
of a negligence standard is a rejection of negligence's objective inquiry.
     Finally, Audette's holding that defendant must act purposefully or
knowingly to violate { 2401 was not made in a vacuum.  This Court has
previously found knowledge to be a subjective inquiry.  In State v. Alpert,
88 Vt. 191, 92 A. 32 (1914), the defendant's conviction for receiving
stolen goods was reversed because the jury instructions created, in effect,
a presumption that the defendant believed what a reasonable person would
believe.  Id. at 204, 92 A.  at 37.  This was found to be an erroneous
substitution of an objective standard for what was meant to be a subjective
standard.  As stated in Alpert, "the effect of such an instruction is to
make guilty knowledge of a [defendant] depend upon what the jury find would
induce 'belief' in the mind of a 'reasonable man,' rather than upon what
they find induced 'belief' in his own mind."  Id.  Alpert's rejection of an
objective inquiry into knowledge preceded the holding in Audette and forms
part of the legal backdrop against which Audette is to be understood.
     The State makes two arguments to the effect that even if { 2401's
intent requirement is subjective, defendant's conviction should not be
reversed.  The State's first argument is that the jury instructions, when
considered in their entirety, made apparent that it was defendant's sub-
jective knowledge that was controlling.  The State contends in its brief
that "[b]asically the 'should have known' language meant that in the
absence of direct evidence, the jury could draw reasonable inferences from
the facts and circumstances of the case as to [defendant's] state of mind."
We agree that the jury can and must decide whether they believe defendant's
claim that he "did not know" his actions were practically certain to con-
fine the victim against her will by examining the facts and circumstances
of the case.  Yet this is fundamentally different from deciding whether
defendant "should have known" because of the facts and circumstances of the
case.  The former is deciding whether knowledge existed, while the latter is
deciding only whether knowledge should have existed.  These are not equiv-
alent.  See State v. Moffitt, No. 89-517, slip op. at 2 (Vt. Apr. 19, 1991)
("Knowledge . . . is determined by a subjective standard rather than the
objective standard of negligence law (a reasonable person would have known,
therefore, defendant should have known)."); Alpert, 88 Vt. at 204, 92 A.  at
37.  Further, the fact that the instructions contained the words "knowingly
or purposefully" could not cure an error which lay in the  definition of
     The State's second argument is that the error in the instructions was
harmless because there was overwhelming evidence that defendant acted
knowingly.  We disagree.  Defendant repeatedly testified that he did not
know he was holding the victim against her will.  He testified that he
thought the victim was helping him.  A psychiatrist called by defendant
opined that defendant's intent at the time of his actions was to seek help,
and that defendant did not know that his actions were almost certain to
cause the victim's confinement.  The arresting officer's report indicated
that defendant "was mortified that he even scared [the victim]."  Defend-
ant's case, as presented to the jury, centered on assertions that he lacked
the requisite purpose or knowledge.  The inclusion in the instructions of
"should have known" language requires reversal.
     As we reverse on defendant's first claim of error, we need not reach
the remaining issues raised by him.
     Reversed and remanded.

                                        FOR THE COURT:

                                        Chief Justice

FN1.    Section 2401 provided in pertinent part:
              A person who, without legal authority, forcibly or
         secretly confines or imprisons another person within
         this state against his will . . . shall be imprisoned
         not more than twenty-five years . . . ."
     The current statutory scheme for kidnapping and unlawful restraint was
added by 1989, No. 293 (Adj. Sess.), { 3, and is codified at 13 V.S.A. {{
2404-2407.  Its intent requirement is "knowing."