State v. Fanger

STATE_V_FANGER.94-262; 164 Vt 48; 665 A.2d 36

[Opinion Filed 30-Jun-1995]

[Motion for Reargument Denied 26-Jul-1995]


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, 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. 


                                 No. 94-262



State of Vermont                                  Supreme Court

                                                  On Appeal from
    v.                                            District Court of Vermont,
                                                  Unit No. 1, Windham Circuit

Bruno Fanger                                      March Term, 1995



Robert Grussing III, J.

Christopher C. Moll, Windham County Deputy State's Attorney, Brattleboro, for
 plaintiff- appellant 

David G. Reid, Brattleboro, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     DOOLEY, J.   The State of Vermont appeals the Windham District Court's
dismissal of one count of unlawful trespass in violation of 13 V.S.A. 
3705(d) against defendant, Bruno Fanger.   The State argues that the trial
court erred by concluding that the State failed to make a prima facie case.  
We reverse. 

     Defendant is the manager and chief caretaker of eight buildings and 350
acres of property located in Jamaica, Vermont.  The owners of the property
reside out-of-state, and in 1993 they were looking for a housekeeper to live
on the property.  Defendant recommended Gary and Jessica Clay for the job,
who were hired on a trial basis and permitted to reside temporarily in the
building, which also housed defendant's office.  The Clays did not perform
their job satisfactorily, and defendant asked them to leave the property,
although he allowed them to remain until they could find alternative
accommodations. 

     Shortly after defendant asked the Clays to leave, defendant informed
Mrs. Clay by 

 

telephone that she and her husband had to vacate the apartment that day. 
Defendant then contacted the state police to inform them that he had a
problem with a tenant and that he needed to go into the tenant's apartment. 
The State did not present any specific evidence regarding the content of this
conversation, other than that the police officer "advised the Defendant of
the consequences if he did not abide by the laws."  After this conversation
with the state police, defendant went to the building where the Clays
resided, and again told Mrs. Clay that she and her husband had to leave the
apartment that day.  When Mrs. Clay responded that defendant should discuss
the issue with her husband, defendant forced his way into the apartment
despite Mrs. Clay's efforts to prevent him from doing so. 

     Defendant moved to dismiss the information, alleging the inability of
the State to establish a prima facie case.  See V.R.Cr.P. 12(d).  In support
of the motion, defendant filed an affidavit describing his version of what
occurred when he entered the apartment the Clays occupied.  A hearing was
held, and Mrs. Clay testified on behalf of the State.  The court had before
it her testimony and affidavit, and the affidavits of the investigating
officer(FN1) and the defendant.  See id. 12(d)(2) (motion to be decided on
basis of "affidavits, depositions, sworn oral testimony, or other admissible
evidence").  The court ruled that the State failed to show that defendant
knew he was not privileged to enter the apartment, an essential element of
the crime, based on defendant's explanation that he entered to turn on the
heat in other apartments and that he believed the Clays' tenancy had ended. 

     The crime with which defendant is charged is defined as follows: "A
person who enters a dwelling house, whether or not a person is actually
present, knowing that he is not licensed or privileged to do so shall be
imprisoned for not more than three years or fined not more than $2,000 or
both."  13 V.S.A.  3705(d). There is no question that defendant entered a
dwelling house.  The question before us relates solely to the knowledge
element. 

 

     The standard for addressing a motion to dismiss for lack of a prima
facie case is the same as the standard for a motion for judgment of
acquittal.  State v. Norton, 147 Vt. 223, 229, 514 A.2d 1053, 1058 (1986)
(standard in Rule 20 for motion for acquittal applies to motion to dismiss
for lack of prima facie case).  The court must determine "whether, taking the
evidence in the light most favorable to the state and excluding modifying
evidence, the state has . . . [produced] evidence fairly and reasonably
tending to show the defendant guilty beyond a reasonable doubt."  Reporter's
Notes, V.R.Cr.P. 29; see V.R.Cr.P. 12(d)(2) (on motion to dismiss for lack of
prima facie case, State must show "it has substantial, admissible evidence as
to the elements of the offense challenged by the defendant's motion").  Thus,
the issue before the trial court, and before this Court on appeal, is whether
sufficient evidence was disclosed to prove beyond a reasonable doubt that
defendant entered the Clay's residence knowing that he was not licensed or
privileged to do so.(FN2)

     Normally, a prima-facie-case ruling is made solely on evidence offered
by the State.  The rule does, however, authorize the defendant to
"cross-examine witnesses and introduce affidavits or further evidence in his
own behalf."  V.R.Cr.P. 12(d)(2).  In view of this authorization, we believe
the trial court must make its ruling based on all the evidence before it,
whether produced by the State or the defendant.  Cf. Ross v. Sirica, 380 F.2d 557, 559 (D.C. Cir. 1967) (under comparable Federal Rule of Criminal
Procedure 5(c) (now 5.1), probable cause determination is made on all
evidence, including evidence adduced by accused); Schwader v. District Court,
474 P.2d 607, 609-10 (Colo. 1970) (same under Colorado Criminal Rule
5(c)(3)). 

     Vermont's criminal trespass statute is based on the Model Penal Code
adopted by the American Law Institute in 1962.  See State v. Kreth, 150 Vt.
406, 409, 553 A.2d 554, 556 (1988).  The primary similarity between the two
statutes is that a trespass is committed only by 

 

a person "knowing that he is not licensed or privileged to do so." Compare
Model Penal Code  221.2(1) (1962) (emphasis supplied) with 13 V.S.A. 
3705(d).  Comment 2(a) to  221.2 states that the knowledge requirement
excludes from criminal liability both the inadvertent trespasser and the
trespasser who believes that he has received express or implied permission to
enter or remain on the premises.  The knowledge requirement establishes a
subjective standard.  See State v. Sargent, 156 Vt. 463, 466-67, 594 A.2d 401, 403 (1991); Model Penal Code  2.02(b)(i) & Cmt. 2 (1980).  It is not
sufficient for the State to show that defendant should have known he was not
licensed or privileged to enter the dwelling.  See Sargent, 156 Vt. at
465-66, 594 A.2d  at 402.  This interpretation of the "knowing" requirement is
supported by other jurisdictions that have criminal trespass statutes
containing the same relevant language as Vermont's.  See State v. Dansinger,
521 A.2d 685, 689 (Me. 1987) (liability for criminal trespass necessarily
involves state of mind of defendants);  State v. Santiago, 527 A.2d 963, 965
(N.J. Super. Ct. Law Div. 1986) (no criminal liability for trespass where
defendant perceived that she was privileged to be on premises);  Commonwealth
v. Sherlock, 473 A.2d 629, 632 (Pa. Super. Ct. 1984) (no criminal liability
for trespass where defendant could have believed that he was licensed to be
on premises). 

     We recognize that "[i]ntent is rarely proved by direct evidence; it must
be inferred from a person's acts and proved by circumstantial evidence." 
State v. Cole, 150 Vt. 453, 456, 554 A.2d 253, 255 (1988).  Nevertheless, we
agree with the trial court that much of the State's claim for the adequacy of
the evidence cannot be sustained.  For example, the State points to
defendant's conversation with the state policeman as evidence that defendant
knew that his actions were unlawful.  The officer's affidavit, however,
states only that he "advised the Defendant of the consequences if he did not
abide by the laws" without providing any details of the conversation.  It is
impossible to determine what advice, if any, the officer gave defendant about
the requirements of the law or about actions defendant might take.  Thus, we
agree that this evidence alone does not meet the State's burden. 

 

     Nor are we convinced that we should find the intent element because
defendant is improperly attempting to rely on his ignorance of the law.  See
State v. Woods, 107 Vt. 354, 356-57, 179 A. 1, 2 (1935) (maxim ignorantia
legis non excusat is "of unquestioned application in Vermont . . . both in
civil and in criminal cases"). Assuming, as the State argues, that the law
clearly gave defendant no privilege to enter on behalf of the property owner,
the subjective intent standard of  3705(d) necessarily includes knowledge
of defendant's legal right to enter. See Model Penal Code  2.04(1)(a)
(1962) (ignorance as to matter of fact or law is defense if ignorance
negatives the knowledge required to establish material element of offense). 

     We are, however, persuaded that the evidence on the facts surrounding
defendant's entry, and his conduct after he entered, creates an inference
that defendant knew he was not licensed or privileged to enter.  In his
affidavit, defendant explained his reason for entry: 

      [I]t was becoming quite cold in this area of Jamaica and it was
      necessary for me to enter the office where the Clays had been
      staying in order to gain access to the furnace switch and fuse box
      which controlled not only the office where Mr. and Mrs. Clay had
      been temporarily staying, but other apartments in the same
      building.  My intention in entering the apartment on October 12,
      was to, in fact, secure the thermostat, electric and other utilities to
      the other apartments in the building.  When I entered the office,
      it was under my authority as caretaker and with the permission and
      under the authority of the owner . . . for I believed I had every
      right and privilege to enter the office.

Similarly, the affidavit of the investigating officer stated that when the
officer arrived "[d]efendant advised that he tried to go into the house to
make sure the heat was on." 

     The testimony of Mrs. Clay clearly disputed defendant's purpose for
entry.  She testified that defendant's only acts with respect to the heat and
electricity in the building were to disconnect the heat, electricity and hot
water in the apartment in which the Clays were staying. She testified that
defendant said nothing about protecting the heat in other apartments and made
clear he was there to evict her.  We conclude that where defendant has
explained his intent, and there is evidence negativing that explanation, the
inference can be drawn that defendant knew he did not have a license or
privilege to enter so that the case should not have been dismissed. 

 

     Our conclusion is reinforced by other evidence of defendant's actions. 
According to Mrs. Clay's testimony, defendant's entry was accomplished by
force and was accompanied by violence.  She testified that defendant pushed
open the door while she was attempting to keep it shut, and in the process
knocked over her child.  She added that "he grabbed my wrist and twisted it
behind my back and pulled my hair."  This level of violence is inconsistent
with an understanding that defendant was simply doing what the law allowed. 

     Both in its procedural posture and in the nature of the evidence, this
case is similar to Commonwealth v. McBride, 595 A.2d 589 (Pa. 1991), decided
under the virtually identical Pennsylvania statute.  In McBride, the trial
court dismissed the prosecution for lack of a prima facie case because the
Commonwealth had failed to show that the defendant did not know he lacked
permission to enter a house.  The Supreme Court reversed, relying on the fact
that the defendant approached the house with a drawn gun and entered by
kicking in a door.  The Court reasoned that from these facts it was
"reasonable . . . to infer that appellee lacked permission to enter."  Id. at
592.  Similarly in this case, the evidence of defendant's violent acts
undercuts an explanation of his conduct as the exercise of a landlord's right
to evict a tenant in accordance with the law. 

          Reversed and remanded. 

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice

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                            Footnotes


FN1.  The court excluded much of the investigating officer's affidavit on
hearsay grounds, but allowed the part of the affidavavit bearing on this
decision. 

FN2.  The State also addressed whether defendant's entry was privileged or
licensed.  The trial court did not consider this argument, and did not rule
that the State failed to show absence of license or privilege.  Accordingly,
we have not addressed this argument, except tangentially in relation to the
knowledge element.