The
Players: Judges Fisher, Easterly and Ferren. Opinion by Judge Fisher. William T. Morrison for appellant.
Trial Judge: Heidi Pasichow.
The
Facts: Two days after a Maxima was stolen, Owens was
stopped by the police while driving it.
The ignition was damaged, a side vent window was broken, and it was
being operated with an altered BMW key.
He was convicted of RSP after the judge responded to a jury note asking
for clarification on the required mens rea – whether the defendant possessed
the car “knowing or having reason to believe that the property was
stolen.” Without objection, the judge
instructed the jury that the “reason to believe … determination should be based
upon what a reasonable person would have believed under the facts and
circumstances as you find them.”
Issue: Did the judge commit plain error by instructing
the jury that “reason to believe the property was stolen,” the mens rea for
RSP, was satisfied by an objective standard, i.e., proof that a reasonable
person would have known the car was stolen?
Holding:
The instruction was error because the standard is a subjective one, but
reversal is not required under plain error review on the facts here. If the government is relying on a theory broader
than actual knowledge, the following instruction is recommended as a correct
legal statement:
Element No. 3 requires that the defendant either
knew or had reason to believe that the property was stolen. This state of mind is a subjective one,
focusing on the defendant’s actual state of mind, and not simply on what a
reasonable person might have thought. In
determining whether the government has met its burden of proving the
defendant’s subjective state of mind, you may consider what a reasonable person
would have believed under the facts and circumstances as you find them. But guilty knowledge cannot be established by
demonstrating mere negligence or even foolishness on the part of the defendant. It may, nonetheless, be satisfied by proof
beyond a reasonable doubt that the defendant deliberately closed his eyes to
what otherwise would have been obvious to him.
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