State v. Beayon

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 89-309


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Rutland Circuit

 Pamela J. Beayon                             November Term, 1991


 Francis B. McCaffrey, J.

 James P. Mongeon, Rutland County State's Attorney, Rutland, for plaintiff-
   appellee

 E.M. Allen, 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 her conviction, following a jury trial,
 for vehicular homicide.  She asks us to determine whether a violation of 23
 V.S.A. { 1091(c) requires, at a minimum, a mens rea of criminal negligence.
 We hold that it does, and reverse and remand for a new trial.
      Defendant was travelling west on Route 4-A in Ira on a wet surface when
 she lost control of her car and collided with an eastbound vehicle operated
 by Charles Delaney.  A passenger in the Delaney vehicle sustained injuries
 that resulted in her death weeks later.
      By amended information, the State charged defendant with violations of
 23 V.S.A. {{ 1091(a) (FN1) and 1091(c). (FN2) At trial, the defense 
 unsuccessfully argued that a conviction for violating { 1091(c), which 
 carries a penalty of between one- and fifteen-years imprisonment and/or a 
 fine of up to $3000, could not be based on ordinary negligence, but required 
 the minimum mens rea of criminal negligence.  The trial court instructed the 
 jury it could convict defendant if it found that she breached the duty of 
 ordinary care.  The jury convicted defendant of both offenses.  This appeal 
 followed.
      The State charged defendant with operating in a careless and negligent
 manner in violation of 23 V.S.A. { 1091(a).  Vermont case law firmly
 establishes that "ordinary negligence such as would impose civil liability"
 suffices for a conviction under { 1091(a).  State v. Stevens, 150 Vt. 251,
 252, 552 A.2d 410, 411 (1988).  The issue before the Court, then, is
 whether a conviction for the violation of { 1091(a), based on ordinary
 negligence, supplies the requisite mens rea for a conviction under 23 V.S.A.
 { 1091(c).  We conclude that it does not.
      Section 1091(c) contains no express mens rea requirement.  Instead, it
 predicates an infraction on the violation of "any law, ordinance or
 regulation applying to the operation or use of a motor vehicle or to the
 regulation of traffic" that causes a person's death.  23 V.S.A. { 1091(c).
 The statute looks first to the underlying violation to supply the mental
 element necessary for conviction.  Because the underlying offense could be
 the violation of any motor vehicle law, many of which require no mens rea,
 the statute in effect imposes strict liability for vehicular homicide.  We
 have often implied guilty intent as an element when none was expressly
 provided by the statute.  See State v. Stanislaw, 153 Vt. 517, 523, 573 A.2d 286, 290 (1990) and cases cited therein.
      Title 23 V.S.A. { 1091(c) is a criminal homicide statute which now
 imposes the same penalty as Vermont's manslaughter statute, 13 V.S.A. {
 2304.  As we noted in Stanislaw, "[t]he legislature could not have intended
 to subject a person to a sentence of this duration without requiring the
 State to show that the defendant bore some fault in causing the death of
 another."  153 Vt. at 524, 573 A.2d  at 290.  Following our holding and
 reasoning from that case, we rule that a violation of 23 V.S.A. { 1091(c)
 requires, at a minimum, a mens rea of criminal negligence.  Defendant "must
 have disregarded a risk of death or injury '"of such a nature and degree
 that [the] failure to perceive it, considering the nature and purpose of
 [her] conduct and the circumstances known to [her], involves a gross
 deviation from the standard of care that a reasonable person would observe
 in the actor's situation."'"  Stanislaw, 153 Vt. at 525, 573 A.2d  at 291
 (quoting State v. Watson, 138 Vt. 276, 280-81, 413 A.2d 806, 808 (1980)
 (quoting the Model Penal Code definition of negligence, { 2.02(2)(d) (1962)
 (emphasis in original))).
      We agree with the State that the last sentence of { 1091(c) -- "[t]he
 provisions of this section do not limit or restrict prosecutions for
 manslaughter" -- indicates that manslaughter and vehicular homicide are
 distinct crimes.  See also State v. Poirier, 142 Vt. 595, 599, 458 A.2d 1109, 1111 (1983) (DUI/fatal and manslaughter are separate and distinct
 offenses).  We disagree, however, with the State's suggestion that the
 public safety element of { 1091(c) reduces the mens rea requirement for a
 conviction of that statute.  All homicide law, whether or not labeled a
 "public safety" statute, has as a purpose the protection of human life.  As
 we noted in Stanislaw, a "person's criminal liability for an act should be
 proportioned to his or her moral culpability for that act."  153 Vt. at 525,
 573 A.2d  at 291.  Moreover, our research reveals no other jurisdiction that
 imposes felony penalties for vehicular manslaughter based on strict
 liability or on mere civil negligence.  The trial court erred when it
 instructed the jury that it could convict defendant for a violation of
 1091(c) if it found that she breached a duty to exercise ordinary care.
      Reversed and remanded.


                                         FOR THE COURT:




                                         Chief Justice




 FN1.       { 1091(a) states:
 No person shall operate a motor vehicle on a public
 highway in a careless or negligent manner, or upon a
 wager, for racing purposes, or for the purpose of making
 a record, or in any manner to endanger or jeopardize the
 safety, life or property of a person.  A person who
 violates this section shall be punished upon a first
 conviction by a fine of not more than $300.00 or by
 imprisonment for not more than three months, or both;
 and upon a second conviction by a fine of not more than
 $500.00 or by imprisonment for not more than six months,
 or both.

 FN2.    { 1091(c), amended subsequent to this action in 1991, previously
 stated:
 A person who, while engaged in the violation of any law,
 ordinance or regulation applying to the operation or use
 of a motor vehicle or to the regulation of traffic,
 causes, as a result of the violation, the death of any
 person shall be fined not more than $3,000.00, or
 imprisoned not less than one year nor more than 15
 years, or both.  The provisions of this section do not
 limit or restrict prosecutions for manslaughter.