State of Vermont v. Jonathan C. Richards
No. 2020-027
Supreme Court of Vermont
January Term, 2021
2021 VT 40
David R. Fenster, J.
On Appeal from Superior Court, Rutland Unit, Criminal Division. Rosemary Kennedy, Rutland Count State‘s Attorney, and L. Raymond Sun, Deputy State‘s Attorney, Rutland, for Plaintiff-Appellee. Matthew Valerio, Defender General, Rebecca Turner, Appellate Defender, and Lena Capps, Legal Intern, Montpelier, for Defendant-Appellant. PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gоv or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
¶ 2. The following facts were adduced at trial. Defendant and complainant began a relationship in December 2016. Shortly after complainant became pregnant, the couple broke up. After the baby was born, complainant wanted defendant to be a part of the baby‘s life, and in March 2018, the couple got back together. Defendant stayed at complainant‘s apartment for about a month as they tried to rekindle their relationship but did not stay there every night.
¶ 3. However, the reconciliation did not last. On April 27, 2018, the couple got into an altercation when complainant arrived home late from an evening out while defendant was watching their baby. Complainant testified that she and defendant began arguing, and defendant told her that he did not want to be in a relationship with her and wanted to leave. Complainant said that she was crying and alleged that defendant
¶ 4. The baby woke up during their altercation and began to cry, and complainant testified that she told defendant not to touch the baby. Complainant said that as she went to get the baby, she got knocked down and defendant kneed her in the face. Defendant picked up the baby and complainant said that she begged him to “just give [her the baby] and leave.” Defendant refused and continued to hold the baby until he realized that police officers had arrived at the apartment.
¶ 5. Defendant denied strangling complainant or kneeing her in the face. He testified that after he broke up with complainant, he called a friend to come pick him up. When the baby began to cry, he said that complainant told him not to touch the baby and tried to shove past him, but defendant put his arm across the hallway to block her using a “stiff arm” and picked up the baby. He continued to hold the baby and push complainant away from him because he did not “know when . . . [he would] see [his] daughter” again and wanted to hоld her until his friend arrived to pick him up. He gave complainant the baby once he saw that the officers had arrived.
¶ 6. Defendant was charged with aggravated domestic assault, domestic assault, and misdemeanor unlawful trespass. See
¶ 7. The court declined to read a knowledge element into the statute and instructed the jury accordingly. It distinguished Fanger, where this Court held that the State must show a defendant subjectively knew that he or she lacked license or privilege to enter a home to be convicted of felony unlawful trespass under
¶ 8. The jury ultimately acquitted defendant of the assault charges but convicted him of unlawful trespass. At defendant‘s sentencing hearing, the court imposed a suspended sentence of one to three months and placed defendant on probation for оne year. The court imposed special conditions and standard conditions, including condition A, which provided that “you [are] not [to] be convicted of another crime or engage in criminal behavior.” Defendant objected to the latter part of this condition, arguing that the phrase “engage in criminal behavior” is vague and could subject him to criminal penalties under a preponderance of the evidence standard rather
¶ 9. On appeal, defendant renews his objections to the jury instructions and probation condition. He argues that the trial court erred by declining to instruct the jury that the State must show that defendant knew he lacked consent or authority to remain in complainant‘s apartment. He also argues that the court abused its discretion by imposing the probation condition that prohibits defendant from engaging in criminal behavior. We discuss each issue in turn.
I. Jury Instructions
¶ 10. We first address defendant‘s challenge to the court‘s jury instructions. The party who contests a jury instructiоn bears the burden of showing that the instruction “was both erroneous and prejudicial.” State v. Peatman, 2018 VT 28, ¶ 14, 207 Vt. 97, 185 A.3d 1257 (quotation omitted). “When reviewing jury instructions, this Court must read the charge as a whole, rather than piecemeal, and will uphold the instruction where it breathes the true spirit and doctrine of the law and does not mislead the jury.” Id. (quotation omitted). Here, the jury instruction reflected the trial court‘s conclusion that the license element of the misdemeanor unlawful trespass statute,
¶ 11. Defendant challеnges the trial court‘s construction of
¶ 12. Accordingly, we begin our analysis with the plain language of the statute. When construing the plain language, “we presume that all language in a statute was drafted advisedly” and that “the Legislature knows how to incorporate a scienter element.” Richland, 2015 VT 126, ¶¶ 6, 8 (quotation omitted). The misdemeanor unlawful trespass statute reads in pertinent part:
A person shall be imprisoned for not more than threе months or fined not more than $500.00, or both, if, without legal authority or the consent of the person in lawful possession, he or she enters or remains on any land or in any place as to which notice against trespass is given . . . .
¶ 13. Despite the plain language of the statute, defendant argues that
¶ 14. In limited circumstances, statutory language can overcome the common-law presumption. “The common law is changed by statute only if the statute overturns the common law in clear and unambiguous language, or if the statute is clearly inconsistent with the common law, or the statute attempts to cover the entire subject matter.” Langle v. Kurkul, 146 Vt. 513, 516, 510 A.2d 1301, 1303 (1986); see also State v. Stanislaw, 153 Vt. 517, 523-24, 573 A.2d 286, 290 (1990) (presuming that common-law crime carried implied mens rea element “in the absence of an express contrary indication from the Legislature“). Nevertheless, we will not imply a mental state element “when the statutory language cuts against such a result and the policy behind the statute would be defeated.” State v. Roy, 151 Vt. 17, 25, 557 A.2d 884, 889 (1989), overruled on other grounds by State v. Brillon, 2008 VT 35, 183 Vt. 475, 955 A.2d 1108. Accordingly, we turn to the structure and surrounding provisions of the statute to consider whether the Legislature made a deliberate choice to depart from thе common law and exclude a knowledge element. For the reasons set forth below, we conclude that it did.
¶ 15. The language of
¶
¶ 17. Read as a whole,
¶ 18. Further, this Court has acknowledged that some language in
(1) Buildings and Occupied Structures. A person commits an offense if, knowing that he [or she] is not licensed or privileged to do so, he [or she] enters or surreptitiously remains in any building or occupied structure, or separately secured or occupied portion thereof. An
offense under this Subsection is a misdemeanor if it is committed in a dwelling at night. Otherwise it is a petty misdemeanor. (2) Defiant Trespasser. A person commits an offense if, knowing that he [or she] is not licensed or privileged to do so, he [or she] enters or remains in any place as to which notice against trespass is given by:
(a) actual communication to the actor; or
(b) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(c) fencing or other enclosure manifestly designed to exclude intruders.
An offense under this Subsection constitutes a petty misdemeanor if the offender defies an order to leave personally communicated to him by the owner of the premises or other authorized person. Otherwise it is a violation.
Model Penal Code § 221.2(1)-(2).
¶ 19. In some respects, the misdemeanor section of our statute tracks the “Defiant Trespasser” section of the Model Penal Code; however, it is not identical. Among other distinctions,
¶ 20. Defendant, however, urges us to follow our analysis in Day, 150 Vt. at 123. In that case, the defendant was charged with operating a vehicle without the owner‘s consent. See
¶ 21. However,
¶ 23. Here, as in Roy, the statute contains an element that functionally substitutes for knowledge. Section 3705(a) requires that notice to the trespasser be given in certain forms, including by actual communicаtion or by signs and placards.
¶ 24. Indeed, the difficulty of proving knowledge in such cases underscores our conclusion. See id. at 25, 557 A.2d at 889-90 (identifying “the difficulty of prosecution if intent is required” аs factor in determining whether Legislature intended to impose strict liability); Fanger, 164 Vt. at 53 (explaining that “[i]ntent is rarely proved by direct evidence; it must be inferred from a person‘s acts and proved by circumstantial evidence” (alteration in original) (quotation omitted)). If the State was required to prove that a person knew or should have known that he or she lacked authority or consent to enter or remain on land, then there would be no need for the person in lawful possession to also provide notice against trespass.
¶ 25. We acknowledge that the notice element does nоt serve as an exact substitute for knowledge in all instances under
¶ 26. In sum, we decline to imply a knowledge requirement into the license element of
II. Probation Condition
¶ 27. Defendant next argues that the probation condition requiring that he “not engage in criminal behavior” is vague and fails to give him sufficient notice of what conduct is prohibited, and is not reasonably related to his rehabilitation. We review the imposition of probation conditions for abuse of discretion. State v. Moses, 159 Vt. 294, 297, 618 A.2d 478, 480 (1992). “The burdеn of proof is on the party alleging abuse, and that party must show that the court failed to exercise its discretion or did so for reasons clearly untenable or to an extent clearly unreasonable.” State v. Putnam, 2015 VT 113, ¶ 44, 200 Vt. 257, 130 A.3d 836 (quotation omitted).
¶ 28. Defendant contends that this condition is unreasonable because there were no facts in the record to support the trial court‘s probation condition, and that it does not help rehabilitate defendant or ensure public safety and thus does not serve the goals of probation. We disagree. The Legislature has granted the trial court discretion to imposе probation conditions that the court “deems reasonably necessary to ensure that the offender will lead a law-abiding life or to assist the offender to do so.”
¶ 30. Contrary to defendant‘s assertion, this condition does not reach lawful behavior. We previously considered this probation condition in State v. Stern, 2018 VT 36, 207 Vt. 479, 186 A.3d 1099.4 In Stern, the defendant asked his probation officer whether he could possess a firearm. The officer responded that he was not a lawyer, but he thought it was okay. In fact, defendant‘s possession of a firearm was illegal because he had been convicted of domestic assault. See
¶ 31. Thus, our analysis in Stern supports the conclusion that “criminal behavior” means only unlawful behavior, or conduct that constitutes a violation of the law; otherwise, the behavior would not be criminal. This condition is neither vague nor unclear. We presume that defendant knows the law and understands “what conduct qualifies as engaging in criminal behavior,” consistent with the “long-standing legal principle that ignorance of the lаw is not an excuse, meaning, the law presumes all individuals know the law and are responsible for noncompliance.” Id. ¶¶ 8, 11 (alteration omitted) (quotations omitted). The condition puts defendant on the same notice as the general public to conform his behavior to the law and thus does not violate his due process rights.
¶ 32. Defendant argues that “engag[ing] in criminal behavior” must have a broader meaning because otherwise, it would restate the first part of the condition, which prohibits defendant from being convicted of another crime. The requirement that defendant “not engage in сriminal behavior” is not surplusage, as defendant suggests, because it does not merely prohibit defendant from being convicted of a crime. The practical effect of this condition is to allow for an expedited violation-of-probation hearing before a judge under the preponderance of the evidence standard, rather than before a jury under the beyond a reasonable doubt standard. The Legislature has made this explicit.
¶ 33. As such, defendant‘s contention that this condition gives probation officers untethered discretion is rebutted by the protections set in place by statute. As with all probation conditions, “the Commissioner of Corrections, acting through the probation officer, has the discretion whether to file a violation-of-probаtion complaint based on a probationer‘s alleged violation of a condition of probation.” State v. Masse, 164 Vt. 630, 631-32, 674 A.2d 1253, 1255 (1995) (mem.) (citing
¶ 34. In sum, we conclude that condition A, specifically the language that defendant “not engage in criminal behavior,” is facially valid. The trial court did not abuse its discretion by imposing this condition.
Affirmed.
FOR THE COURT:
Chief Justice