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DMV documents crime has mens rea element.

Byline: Virginia Lawyers Weekly

Where defendant was convicted of aiding another person to unlawfully obtain documents from the Virginia Department of Motor Vehicles, the jury verdict is set aside because the crime has an implied mens rea element that was not reflected in the jury instructions. The commonwealth may reschedule a trial if it chooses to do so.

Overview

Davis was originally charged under Code 46.2-105.2(A) for unlawfully obtaining documents from the DMV. The indictment was later amended, under subsection (B) of the statute, to aiding another person in unlawfully obtaining DMV documents.

At trial, the commonwealth alleged that Davis unlawfully aided Taylor to get title to a vehicle owned by Martinez-Rodriguez by using a DMV procedure that applies to apparently abandoned vehicles. If a person reports an apparently abandoned vehicle and the owner "fails to take responsive actions," the person reporting the vehicle may take title to it.

Davis did not testify but defense counsel argued that "Davis thought he was helping Taylor lawfully claim an abandoned vehicle without any fraudulent intent."

There are no model jury instructions for the offense. Davis proposed jury instructions that reflected a fraudulent intent requirement. Over his objection, the court used the commonwealth's proposed instruction, which did not include fraudulent intent as an element. Davis has moved to set aside the jury's guilty verdict.

Impliedmensrea

"Underlying Subsection (A) of Virginia Code 46.2-105.2 is the clear intent of the General Assembly to criminalize the act of obtaining documents from the DMV to which the person is not legally entitled to (either inherently or due to a procedural flaw). It is equally clear Subsection (C) contains a mens rea element: 'to knowingly possess'" such documents.

Davis acknowledged at trial that subsection (B), aiding another person in unlawfully obtaining DMV documents, is "completely silent as to a mens rea" element but argues that such element should be implied. The court agrees.

"Resolution of the issue before the Court hinges on the mens rea inferable, if any, to one who 'aids' another in an unlawful act."

"Aid," as used in the statute, is a "common law term of art." An "'aider is one who is present, actually or constructively, assisting the perpetrator in the commission of the crime.' 'The prosecution must prove that the accused did or said something showing his consent to the felonious purpose and his contribution to its execution.' That is, for criminal liability for aiding to attach, the defendant must have the requisite means rea."

Merely because there is no mention of intent in a statute does not necessarily mean that the intent element has been eliminated. "In this instance, the omission of a mens rea in Subsection (B) does not eliminate the element of mens rea from the Commonwealth's burden of proof during its case-in-chief. Given the employ of 'aid,' a common-law term-of-art, implicit in Subsection (B) of Virginia Code 46.2-105.2 is a mens rea element of 'knowledge' on the part of the aider.

"Thus, this Court holds, to be liable under Virginia Code 46.2-105.2(B), a defendant must knowingly aid another person [to] obtain the listed documents with the knowledge the principal has not satisfied all legal and procedural DMV requirements or is otherwise not legally entitled to the document obtained. More simply put, Subsection (B) contains an implied and necessary mens rea element of knowledge."

Davis urges the court to "infer a higher level of mental culpability, one of 'fraudulent intent,' into Virginia Code 46.2-105.2(B). This, however, is a step too far. Davis is correct the jury should have been instructed about the implicit mens rea embedded into Virginia Code 46.2-105.2(B), as discussed above. Yet, the mens rea implied is not fraudulent intent as Davis maintains, but mere knowledge of the facts making the conduct illegal the principal obtained DMV documents to which he was not legally entitled."

Notharmlesserror

The failure to instruct on a mens rea element was not harmless error. "The instruction totally neutered Davis' chief defense he thought he had the right to aid Taylor in obtaining the DMV documents. The jury should have had opportunity to consider whether Davis knew Taylor had not satisfied all legal and procedural requirements or was not otherwise legally entitled to the title he obtained."

The motion to set aside the verdict is granted. The Commonwealth may retry Davis, as "the Double Jeopardy doctrine does not apply."

Commonwealth v. Davis. Case No. FE-2017-1514, Jan. 22, 2019; Fairfax Cir. Ct. (Oblon). Marcus N. Greene for the Commonwealth; Sebastian M. Norton for Defendant. VLW 019-8-004, 11 pp.

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Title Annotation:Commonwealth v. Davis, Fairfax Circuit Court, Virginia
Publication:Virginia Lawyers Weekly
Date:Feb 5, 2019
Words:777
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