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Duncan v. Commonwealth4/8/2003
this case. Though some crimes with a mens rea of criminal negligence also require death, in each of those cases death is set forth separately in the actus reus component of the crime. For example in Goodman, we affirmed a conviction of involuntary DUI manslaughter under Code § 18.2-36.1 because the defendant's actions caused the death of another, as required under Code § 18.2-36.1(A). We held that the defendant's actions were "aggravated" under subsection (B) because the "appellant was criminally negligent because the manner in which he operated his vehicle 'show a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury.'" Goodman, 37 Va. App. at 389, 558 S.E.2d at 562 (citations omitted).
Though death is an element of DUI manslaughter under Code § 18.2-36.1(A), the lethal nature of the risk does not figure into the aggravation analysis under Code § 18.2-36.1(B). Put another way, an aggravated DUI manslaughter conviction can be predicated on a showing that the defendant had criminal negligence mens rea coupled with an actus reus of "unintentionally caus the death of another person."
Consider too the DUI maiming statute, Code § 18.2-51.4(A). It provides:
Any person who, as a result of driving while intoxicated in violation of § 18.2-266 or any local ordinance substantially similar thereto in a manner so gross, wanton and culpable as to show a reckless disregard for human life, unintentionally causes the serious bodily injury of another person resulting in permanent and significant physical impairment shall be guilty of a Class 6 felony. Code § 18.2-51.4(A).
In this statute, as with the DUI manslaughter statute, the legislature included the same mens rea language ("reckless disregard for human life") used in the child endangerment statute. The actus reus requirement of the DUI maiming statute, however, requires a specific form of "serious bodily injury." Nothing in this statute or in our cases interpreting it requires a fact finder to analyze the defendant's behavior in the abstract to determine if it exposed the victim to a lethal risk of harm before considering the actual, non-fatal harm inflicted.
For these reasons, I believe the phrase "reckless disregard for human life" should be interpreted as a mens rea requirement synonymous with criminal negligence. The phrase does not, in my judgment, include any actus reus requirement limiting the scope of the statute only to lethal risks of harm. By interpreting the statute to include such a limitation, the majority has "conflated the two theoretical pillars of criminal law -- actus reus and mens rea." United States v. Bartley, 230 F.3d 667, 677 (4th Cir. 2000) (Wilkinson, C.J., dissenting).
B.
In legal codes, as in ordinary conversation, "a word is known by the company it keeps." Sprietsma v. Mercury Marine, 537 U.S. ___, 123 S. Ct. 518, 526 (2002) (quoting Gustafson v. Alloyd, Co., 513 U.S. 561, 575 (1995)). The same can be said of a statutory phrase. "Under basic principles of statutory construction, we consider all relevant provisions of a statute and do not isolate particular words or phrases." Lee County v. Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d 680, 682 (2002); see also Lucy v. County of Albemarle, 258 Va. 118, 129, 516 S.E.2d 480, 485 (1999) ("Statutes which have the same general or common purpose or are parts of the same general plan are also ordinarily considered as in pari materia."). We thus consider "the entire body of legislation and the statutory scheme to determine the 'true intention of each part.'" McCray v. Commonwealth, 37 Va. App. 202, 204, 556 S.E.2d 50, 51 (2001) (citation omitted). And
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