State of Vermont v. Francis L. Lampman
No. 2016-312
Supreme Court of Vermont
September Term, 2017
2017 VT 114
Thomas Z. Carlson, J.
On Appeal from Superior Court, Grand Isle Unit, Criminal Division. PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
NOTICE: This opinion is subject to motions for reargument under
David Tartter, Deputy State‘s Attorney, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, Dawn Matthews, Appellate Defender, and Rebecca Blackmon, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.
¶ 2. The State presented the following evidence in connection with the burglary and petit larceny charges against defendant. A witness who was praying at a shrine across the street from a construction site at 10:30 p.m. heard noise and decided to investigate. The witness snuck behind a tree on the construction site and saw someone, later identified as defendant, moving roofing material “back and forth” between the building under construction and a porta potty stationed next to the driveway. He did not see defendant actually enter the house. The witness called 911 to report what he saw. Moments later, a small, dark Sport Utility Vehicle (SUV) pulled in, and the witness observed two people load the material into the SUV and pull away.
¶ 3. Based on the witness‘s description, deputies with the Grand Isle Sheriff‘s Department caught the SUV soon after it left the site. The deputies saw multiple boxes of roofing material through the back windows of the vehicle. The deputies identified defendant as the passenger and his cousin as the driver. Defendant offered several different and incompatible explanations in close succession as to why he was on the site and what he had done. At one point, defendant told the officer that both he and his cousin pulled into the site together, noticed the material on a pallet right next to the porta potty, and simultaneously loaded the material into the vehicle. When confronted with the witness‘s statement that someone had been at the site moving the material before the vehicle pulled in, defendant then said his cousin had dropped him off and he had moved the material alone, but that he and his cousin eventually loaded the material into the vehicle together.
¶ 4. The construction site manager testified that when he was on-site the morning before the day of this incident, the house under construction had framed walls, with Tyvek wrapping on the exterior1; roof dormers, but not roof rafters; a constructed first and second floor; and window and door openings, but without glass in the
¶ 5. The manager testified that when the roofing material was delivered two days before the theft, the crew was not ready to use it, so they placed it in the house‘s first-floor stairwell opening. The manager explained that the company had a policy—which all the employees knew of—to keep this material indoors because its adhesive gets ruined in direct sunlight. When the manager was on-site the dаy before the incident, the material was still located under the stairwell, and the manager did not tell anyone to remove it. He was confident that the material, which weighed at least forty to fifty pounds per package, was still under the stairwell on the night of the incident because, if left outside, it would have been in the way of the basket lift for the roof construction that was underway.
¶ 6. At the close of the State‘s case, defendant moved for judgment of acquittal on the burglary charge under
¶ 7. Defendant testified in his defense. He did not deny that he and his cousin went to the cоnstruction site to take roofing material. However, he testified that the roofing material that he and his cousin took was left on a pallet on the grass at the construction site, not within the building. Defendant maintained that he did not go inside the partially constructed house. He explained that he moved the material between two locations before loading it into the SUV because his cousin wanted it closer to the porta pоtty.
¶ 8. Throughout the proceedings before the trial court, defendant admitted to stealing the roofing materials, but denied the burglary charge. Before the start of the trial, defendant moved to dismiss the burglary charge, arguing that the partially completed house did not meet the definition of “building or structure” under Vermont‘s burglary statute,
¶ 9. At the charge conference, defendant sought an instruction that defined building or structure “as a man-made enclosed space completed to the point where it is capable of being occupied or used as intended.” The court rejected defendant‘s proposed instruction and gave this instruction regarding the definition of “building or structure” in
[A required] element is that [defendant] entered a building or structure, in this case a building that was under construction . . . . A building or a structure encloses a space within its walls and is usually but not necessarily covered with a roof or otherwise closed in. The building or structure need not be completed or fully closed in. Entry does not require breaking in. It means go into a generally enclosed space.
Defendant renewed his objection following the jury charge.
¶ 10. After the jury returned a guilty verdict on both charges, defendant renewed his Rule 29 motion for judgment of acquittal on the burglary count and moved for a new trial pursuant to
¶ 11. On appeal, defendant argues that (1) the jury instruction was erroneous because the language “building or structure” in
I. Definition of “Building or Structure”
¶ 12. Defendant‘s challenge to the trial court‘s jury instruction in this case turns on the meaning of “building or structure” in the burglary statute,
to determine if they accurately reflect the law“). In reviewing whether the jury instruction accurately characterized the law, we interpret the statutory language of
¶ 13.
¶ 14. We reject defеndant‘s argument that an edifice is not actually a building or structure under
¶ 15. The plain meaning of “building or structure” in
¶ 16. None of the cases cited by defendant support the сontention that a “structure” must have a roof. Defendant cites several cases requiring that a “building” have a roof. See People v. Chavez, 140 Cal. Rptr. 3d 860, 865 (Ct. App. 2012); State v. Ashby, 339 S.W.3d 600, 607 (Mo. Ct. App. 2011); People v. Powell, 957 N.Y.S.2d 807 (App. Div. 2012); see also Dalton v. Commonwealth, 418 S.E.2d 563, 564-65 (Va. Ct. App. 1992) (requiring a “storehouse” to have a roof). But defendant has not provided authority—nor were we able to find any—that construes the term “structure” in a burglary statute to mandate a completed roof.
¶ 17. Our holding in this case is consistent with decisions in other jurisdictions concluding that a fenced-in enclosure may, at leаst in certain circumstances, be a “structure” within the meaning of a burglary statute. For example, the Washington Supreme Court concluded that a
six-to-seven-foot fence topped by barbed wire raising the barrier to nine or ten feet, that surrounded a property that was fully enclosed by the fence or building walls, was a “structure” within the burglary statute. State v. Roadhs, 430 P.2d 586, 588 (Wash. 1967) superseded by statute, Wash. Rev. Code Ann. § 9A.04.11, as recognized in State v. Engel, 210 P.3d 1007 (Wash. 2009). The court explained:
Were the fence a mere boundary fence or one erected for the sole purpose of esthetic beautification, it would not constitute a “structure” as that term was intended to be interpreted by the legislature. However, where the fence is of such a nature that it is erected mainly for the purpose of protecting property within its confines and is, in fact, an integral part of a closed compound, its function becomes analogous to that of a “building” and the fence itself constitutes a ‘structurе’ subject to being burglarized.
Id.; see also People v. Moyer, 635 P.2d 553, 556 (Colo. 1981) (en banc) (holding that fenced enclosure serving as outdoor kennel qualified as an “occupied structure” under burglary statute); Joy v. State, 460 N.E.2d 551, 558-59 (Ind. Ct. App. 1984) (holding that fence surrounding lumber yard was structure under burglary statute as its purpose was protecting property within its confines and it was integral part
¶ 18. Defendant‘s argument that this reading impermissibly expands the reach of the burglary statute beyond its common law contours fails to recognize that the Vermont Legislature has deliberately expanded the range of interests protected by the burglary statute beyond habitation to include heightened expectations of security and privacy—an expansion that resonates with the modern trend across the country.
¶ 19. Defendant is correct that at common law the crime of burglary sought to protect habitation interests. The U.S. Supreme Court has explained that the original elements of burglary consisted of “breаking and entering of the dwelling house of another in the nighttime with the intent to commit a felony.” Taylor v. United States, 495 U.S. 575, 581 n.3 (1990) (quotation omitted); see also 3 W. LaFave, Substantive Criminal Law § 21.1 (2d ed. 2016) (explaining that common law burglary found its theoretical basis in the protection of the right of habitation); J. Suk, Criminal Law Comes Home, 116 Yale J. L. 2, 23 (2006) (“The invasion of the home constituted the violation of a right so basic that it was thought to be grounded in natural law . . . The violation of the ‘right of habitation’ was a fundаmental violation, as there could be nothing ‘more sacred, more inviolate’ than a person‘s home.“).
¶ 20. Rather than being inconsistent with the singular common law policy of protecting the right of habitation,
¶ 21. This is consistent with the evolution of burglary laws in other states. As the U.S. Supreme Court has recognized, “the contemporary understanding of ‘burglary’ has diverged a long
way from its common law roots.” Taylor, 495 U.S. at 593. What separates burglary from, for example, trespass and larceny, is not only intent of the intruder to commit a specified crime, but also the heightened expectation of privacy and security for the individual and property that attaсhes to buildings and structures as compared to open land. The California Court of Appeals
A structure with a locked door or window clearly affords a reasonable expectation of protection from invasion. But even an open door or window affords some expectation of protection from unauthorized intrusion because reasonable persons understand the social convention that portals may not be crоssed without permission from the structure‘s owner.
Id.; see also State v. Moler, 2 P.3d 773, 778 (Kan. 2000) (“In the burglary statute, the enumerated items are intended to present a barrier to entry, which in turn provide an enclosed space for the security of persons or property which may be contained therein.“); State v. Office of Public Defendant ex rel. Muqqddin, 285 P.3d 622, 632-33 (N.M. 2012) (explaining that burglary statute is designed to protect “the right to exclude others” and privacy interest arising from this right, and that nature of enclosure at issue, creates requisite expectation of privacy). The edifice at issue in this case, with or without a roof, gives rise to the heightened expectation of privacy and exclusion that the burglary statute seeks to protect.
¶ 22. We quickly dispense with defendant‘s argument that an expansive reading of “structure” creates impermissible overlap between statutes covering the same wrongdoing. The Legislature can, and often does, enact criminal statutes with overlapping elements, leaving discretion to prosecutors to choose which to apply in a particular case. See State v. Perry, 151 Vt. 637, 640, 563 A.2d 1007, 1010 (1989) (“It is within the prosecutor‘s discretion to determine which overlapping criminal offenses established by the facts should be charged, and we will not interfere with the exercise of this discretion without a statement by the legislature that such an infringement is intended.“).6
¶ 23. We also disagree with defendant‘s argumеnt that, by instructing the jury that “a building or structure can exist without a roof and without being closed in,” the court relieved the State of its burden of proving beyond a reasonable doubt that the construction project was a “building or structure.” The court specifically instructed the jury that it had to find that defendant “entered a building or structure.” It told the jury that a building or structure “encloses a space within its walls,” and that it is “usually but not necessarily covered with a roof and otherwise closed in.” These instructions framed the legal definition of “building or structure” to guide the jury‘s assessment of whether this element was satisfied, but left the question whether defendant had entered a “building or structure” to the jury.
II. Sufficiency of the Evidence
¶ 24. In considering whether the State presented sufficient evidence of the elements of (1) defendant‘s entry into (2) a
sufficient to сonvince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt.” State v. Miller, 146 Vt. 164, 169, 502 A.2d 832, 835 (1985).
¶ 25. We conclude that the evidence viewed in a light most favorable to the State supports a finding, beyond a reasonable doubt, that defendant actually entered the structure to remove the material. To begin, the project manager who was on site the day before the incident testified that the material was stored in the stairwell, inside of the structure. The manager testified that it was highly improbable that any employee moved the material over the course of the next day: the material was heavy, would have been in the way of the ongoing roofing project, and would have been ruined if left in direct sunlight. He explained that it was company policy not to place the material outside, everyone on the site knew of this policy, and no one directed any employee otherwise. Moreover, the jury‘s finding that the material was inside of the house is consistent with the eyewitness testimony that defendant moved the materials from a location by the house to the porta potty before his cousin pulled in to load the materials. This circumstantial evidence was sufficient to support the inference that defendant removed the materials from inside the structure, and the jury was free to disbelieve defendant‘s testimony that the materials were left on the grass outside and that he never entered the structure. See State v. Couture, 169 Vt. 222, 226, 734 A.2d 524, 527 (1999) (“We have long recognized that judging the credibility of witness testimony is a duty left to the jury.“).
¶ 26. Defendant‘s argument that the State failed to prove that the construction project was a “building or structure” under the burglary statute rises and falls with his challenge to the jury instructions. For the reasons set forth above, the partiаlly constructed house could constitute an enclosure despite the absence of a roof, windows, and doors. The State presented evidence that the house under construction had framed walls with Tyvek wrapping on the exterior, roof dormers but not rafters, a constructed first and second floor, and window and door openings without glass or actual doors. On the basis of this evidence, the jury reasonably could have concluded that the partially constructed house constituted an enclosure, or “structure” within the definition provided by the trial court.
Affirmed.
FOR THE COURT:
Associate Justice