708 S.E.2d 253
Va. Ct. App.2011Background
- Marshall had prior aggravated sexual battery conviction and two prior failures to register as a sex offender; he knew, due to those convictions, the duty to reregister every 30 days with the Virginia State Police; he failed to reregister in April 2009 when due; the Department mailed an April 10, 2009 form which was undeliverable and returned; Marshall claimed he was delayed by travel to California and thought his deadline was later; he spoke with Trooper Tomlin and testified he would have reregistered had he been able to return to Virginia on time; the trial court convicted him under Code § 18.2-472.1(B) as a second or subsequent offense; on appeal Marshall challenged the interpretation of “knowingly” and the sufficiency of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Construction of ‘knowingly’ in § 18.2-472.1(B) | Marshall argues ‘knowingly’ requires specific intent or bad purpose | Marshall contends the statute requires no such heightened intent | Knowingly does not require specific intent; it requires knowledge of the duty to register |
| Evidentiary sufficiency under non-specific-intent standard | Evidence unclear about Marshall’s knowledge of duty not to reregister | Undisputed facts show Marshall knew of the duty but failed to act | Evidence supported conviction under non-specific-intent standard |
Key Cases Cited
- Brown v. Commonwealth, 57 Va. App. 381, 702 S.E.2d 582 (2010) (statutory interpretation with deference to trial court on facts; de novo review of law)
- Colbert v. Commonwealth, 47 Va. App. 390, 624 S.E.2d 110 (2006) (statutory construction guiding interpretation of legislative text)
- Rasmussen v. Commonwealth, 31 Va. App. 233, 522 S.E.2d 401 (1999) (restrictive approach to statutory language; legislative intent)
- Jones v. Rhea, 130 Va. 345, 107 S.E. 814 (1921) (principle of following clear legislative terms)
- Frazier v. Commonwealth, 27 Va. App. 131, 497 S.E.2d 879 (1998) (statutory interpretation and intent considerations)
- Bryan v. United States, 524 U.S. 184, 118 S. Ct. 1939, 141 L. Ed. 2d 197 (1998) (‘knowingly’ generally means knowledge of facts, not specific intent)
- Winston v. Commonwealth, 268 Va. 564, 604 S.E.2d 21 (2004) (specific intent not implicit in every statute; must be explicit if required)
- Colbert, cited again for purpose, 47 Va. App. 390 (2006) (as above)
- United States v. Fuller, 627 F.3d 499 (2010) (federal SORNA’s ‘knowingly fail to register’ is not a specific-intent crime)
- United States v. Gould, 568 F.3d 459 (2009) (concurrent federal circuit view on ‘knowingly’)
- United States v. Shenandoah, 595 F.3d 151 (2010) (concurrence on non-specific-intent interpretation)
- United States v. Vasquez, 611 F.3d 325 (2010) (non-specific-intent reading of ‘knowingly’)
- United States v. Whaley, 577 F.3d 254 (2009) (non-specific-intent interpretation)
- United States v. Voice, 622 F.3d 870 (2010) (non-specific-intent interpretation)
- United States v. Griffey, 589 F.3d 1363 (2009) (non-specific-intent interpretation)