20 December 2004

Criminal Intent in Virginia

Jack, of CrimProfBlog, asks - in relation to my Worst Attorney post - the following questions:
1. Doesn't larceny in your jurisdiction require mens rea of intent to steal or the like?
"[B]ecause Code § 18.2-117 is a statutory, not a common law crime, proof of intent to permanently deprive is not an element necessary to sustain a conviction for its violation." Ketchum v. Commonwealth, 12 Va App 258, 262 (1991). This is the prevailing interpretation in Virginia and in order to get there the Virginia Court of Appeals had to ignore two (non-binding) cases from the 4th Federal Circuit and construe a 1985 case from its own court, Molash v. Commonwealth, 3 Va. App. 243 (1986), in a strained manner. Still, it's the law.
2. Doesn't the fact that failure to return within five days is only prima facie evidence of larceny make clear that failure to return is not conclusive evidence?
So I had thought. However, a realistic interpretation of these prima facie assumption statutes is that they shift the burden entirely to the Defendant to prove his innocence; I know appellate courts will offer some sophistic difference here and claim the burden still lies with the prosecutor but that's just not the reality in the courtroom. Still, I thought a I had an affirmative defense that would prove my client's actual innocence (impossibility of performance).
3. Doesn't your criminal code have a catch-all requirement of mens rea in it somewhere?
Criminal code? What be this criminal code?

Virginia's criminal law is a hodge-podge of basic crimes which are defined by common law and various statutory patches which have been put in place over the years by the Legislature. For instance this is the basic grand larceny statute:
Any person who (i) commits larceny from the person of another of money or other thing of value of $5 or more, (ii) commits simple larceny not from the person of another of goods and chattels of the value of $200 or more, or (iii) commits simple larceny not from the person of another of any firearm, regardless of the firearm's value, shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both.
Notice that it doesn't define larceny. There's a lot of this sort of thing in Virginia's statutes.

As to a statutory requirement of mens rea? If you can find one you would become an immensely popular person among Virginia's Defense bar. The Virginia Supreme Court has flatly stated that felony criminal statutes are strict liability statutes if they did not exist at common law and the Legislature included no intent in the statute. (see this post)


Anonymous said...

Thanks. All I can say is: What a drag.


Mister DA said...

Statutory crimes are strict liability unless the legislature explicity specifies a mens rea?! That seems a stretch even for me. Hell, isn't mens rea a core element of the common law? Wait, let me think, is VA one of the states that explicitly aborgated the common law in its constitution?

As to the state of your criminal non-code, that seems to be more typical than not. I wonder how many states really have passed a comprehensive revision of their criminal law in, say, the last 20 years?

Ken Lammers said...

Go read the post I linked to where I addressed the Virginia Supreme Court's decision. That post links to the case which stands for this point.

The petitioner in that case actually argued that common law required mens rea but the Va. Supreme Court decided he was wrong.