STATE V. FENNELL

This is an audio case brief of State v. Fennell, 531 S.E. 2d 512 (S.C. 2000). The audio brief provides a full case analysis. However a written summary of the case is provided below.

Table of Contents

FACTS

In April 1999, two Michigan State Police officers assigned to the State Police Tobacco Tax Unit conducted an administrative inspection of the Ridgeway Party Store. AHMED NASIR, the store manager, was the only employee present. Upon examination, one of the officers determined that  counterfeit tax stamps were  affixed to a number of the tobacco products being sold.

Nasir was charged with possessing or using counterfeit tax stamps under Michigan’s criminal code,

For your convenience the statute under which Nasir was charged reads in relevant parts as follows:

A person who manufactures, possesses, or uses a stamp or manufactures, possesses, or uses a counterfeit stamp or writing or device intended to replicate a stamp without authorization of the department, or a licensee who purchases or obtains a stamp from any person other than the department, is guilty of a felony and shall be punished by imprisonment for not less than 1 year or more than 10 years and may be punished by a fine of not more than $ 50,000.00.

During trial, Nasir requested that the judge instructs the jury on the elements of the crime as follows:

The elements of the offense with which the defendant is charged are these: (1) possession of counterfeit stamps; or (2) use of counterfeit stamps; (3) knowledge on defendant’s part that the stamps are counterfeit; (4) a specific intent on defendant’s part to violate the Michigan Tobacco Tax Act.”

The prosecution opposed this proposed instruction, arguing that the statute creates a strict-liability offense. The court agreed, with the prosecution, and instructed the jury that the prosecution had to prove beyond a reasonable doubt that defendant possessed or used a counterfeit stamp at the Ridgeway Party Store without the authorization of the Michigan Department of Treasury.

Nasir was convicted  of possessing or using counterfeit stamps.

He appealed his conviction.

ISSUE

The issue before the court is whether the legislature intended to dispense with a mens rea or fault requirement when creating the offense for which Nassir was convicted.

RULE

Strict liability crimes require no proof of mens rea or fault.  Although strict liability crimes are generally disfavored, the legislatures authority to create strict liability offenses is firmly rooted. To determine whether a statute imposes strict liability, the court begins its analysis by determining the legislatures intent. The legislatures intent is ascertained from the plain meaning of the language used in the statue.

APPLICATION

The court begun its analysis by looking at the plain language of the statute under which Nasir was charged.

There, the court found that the statute does not include a fault element. The single reference to intent does not come in the context of describing a particular mens rea. Rather, it is used to identify’ the type of writing or device prohibited under the statute, i.e, a writing or device designed to replicate an authentic stamp.

However, the failure to include a fault element in a statute does not end the court’s inquiry. In interpreting a statute in which the Legislature has not expressly included language indicating that fault is a necessary element of a crime, this Court must focus on whether the Legislature nevertheless intended to require some fault as a predicate to finding guilt. Courts commonly consider the following factors when making such an examination.

  • First the court considers whether the statute at issue is a codification of the common law.
  • Next, the court considers whether the statute is a welfare law.
  • Next, the court examines the punishment provided for violation of the statute and the danger that a conviction imposes on the defendants reputation.
  • Next, the court considers the danger to society
  • Finally, the court considers whether the legislature intended to relieve the prosecutors the burden of proving mens rea for the type of offense.

Common Law

Common law crimes are presumed not to be strict liability crimes. The court stated that, Where mens rea  was a necessary element of the crime at common law, [we] will not interpret the statute as dispensing with knowledge as a necessary element. The crime of possessing or using counterfeit tax stamps is not a creature of the common law. Nasir however argued that it was. But the court disagreed because the statute under which Nasir was convicted was at heart a  revenue statute, designed to assure that tobacco taxes levied in support of Michigan schools are not evaded.

Public Welfare law

 Courts are more likely to construe a statue as imposing a strict liability if it is a public welfare law. In the instant case, the court found that  the statue in question was a revenue provision, not a public welfare law. The statute is not designed to place the burden of protecting the public welfare on an “otherwise innocent” person, who is in a position to prevent an injury to the public welfare “with no more care than society might reasonably expect . . . While the regulation of the sale and consumption of cigarettes is a public health concern, this statute only tangentially touches on these matters. In 1997, the Tobacco Products Tax Act, was amended in order to deal with what was identified as the substantial and widespread smuggling of cigarettes into Michigan in order to circumvent the tax levied on each pack of cigarettes. To combat this problem, the Legislature enacted a tax stamp program, which included the creation of the offense in issue.

Punishment For Violation

 The court is less likely to read a statute as imposing a strict liability if the punishment imposed for its violation is severe.

Here, the court found that the punishment provided for in the statute and the danger that conviction poses to a defendant’s reputation is severe. Violation of the statue Nasir was convicted under is a felony punishable by a maximum term of imprisonment often years and a possible fine of up to $ 50,000. With some obvious and notable exceptions, this is not the type of punishment typical of public welfare offenses. Further, the statute mandates a prison term of not less than one year. Additionally, while not quantifiable, we believe the damage the proscribed punishment could potentially inflict to a defendant’s reputation is more in keeping with the notion that such a defendant is guilty of some level of fault greater than what typically accompanies a strict-liability offense. “After all, ‘felony is, as we noted in distinguishing certain common-law crimes from public   welfare offenses, “‘as bad a word as you can give to man or thing.'”

Connected to the severity of the potential punishment is the real possibility that to read the statute as not including a mens rea element would lead to the criminalization of “a broad range of apparently innocent conduct.” For example, because the statute punishes possession of counterfeit tax stamps, a strict reading of the statute would render criminal the possession by a retail customer of a pack of cigarettes bearing a counterfeit tax stamp. We do not believe that the Legislature intended that this potential problem would be regulated solely by prosecutorial discretion.

 

Harm to Public

 Here the court found that the potential harm to the public at large is not of such severity that the court should  presume the Legislature intended to impose liability without fault. The court explained that In observing that the immediate harm attendant to a violation of the statute is basically the loss of potential revenue, we do not intend to minimize the effect of that harm. We simply note that it is not the type of immediate harm to the public welfare that is common to many strict-liability offenses. For example, the prospective immediate harm imposed by the sale of adulterated food is both widespread and potentially devastating to the people and families injured by the contaminated food.

Burden of Prosecution

 Finally, we do not believe that prosecutors would face an oppressive burden if the statute were read to include a fault element. Unlike traffic law violations, we do not see the potential number of prosecutions arising from this statute to be overwhelmingly large. Nor do we believe that proving a fault element would be so difficult that strict liability should be imposed. We do not believe that proving that a defendant charged with violating this statue had a certain state of mind is so difficult that it cannot be established through minimal circumstantial evidence.

Accordingly, we hold that knowledge is an element of the offense of which the defendant stands convicted. Therefore, in order to establish that a defendant is  guilty of possessing or using counterfeit tax stamps, the prosecution must prove that (1) the defendant possessed or used (2) a counterfeit stamp, or a writing or device intended to replicate a stamp, (3) that the defendant possessed or used the counterfeit tax stamp, or a writing or device intended to replicate a stamp, with knowledge that the stamp, writing, or device was not an authentic tax stamp, and (4) that the defendant acted without authorization of the Michigan Department of Treasury.

CONCLUSION

Nassir’s conviction was reversed.

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