State v. Dixon

State v. Dixon  (97-166); 169 Vt. 15; 725 A.2d 920

[Filed 8-Jan-1999]


       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. 97-166


State of Vermont	                        Supreme Court

                                                On Appeal from
     v.		                                
                                                District Court of Vermont,
                                                Unit No. 3, Caledonia Circuit

April Dixon	                                May Term, 1998


Walter M. Morris, J.

       Dale O. Gray, Caledonia County State's Attorney, and Alan M. Singer,
  Deputy State's Attorney, St. Johnsbury, for Plaintiff-Appellee.

       Robert Appel, Defender General, Anna Saxman, Appellate Attorney, and
  Karen Misbach, Law Clerk (On the Brief), Montpelier, for
  Defendant-Appellant.

       Stuart M. Bennett, Shelburne, for Amicus Curiae Vermont Apartment
  Owners Ass'n.

       John J. McCullough III, Vermont Legal Aid, Inc., Montpelier, for Amici
  Curiae Vermont Law Income Advocacy Council and Vermont Tenants, Inc.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson, and Skoglund, JJ.

       DOOLEY, J.  Defendant April Dixon entered a conditional guilty plea to
  a charge of  criminal trespass in violation of 13 V.S.A. § 3705(a)(1),
  after the district court denied her motion  to dismiss.  On appeal, she
  contends that the notice of trespass issued by a landlord is insufficient 
  to sustain a conviction based on her presence in the common areas of an
  apartment building while  on a visit to the daughter of one of the
  landlord's tenants.  We agree and reverse.

       The facts as assumed by the trial court in considering defendant's
  motion to dismiss are  not in dispute and we therefore summarize the
  pertinent determinations from the trial court's  decision.  Prior to the
  events at issue in this case defendant had been a tenant in an apartment 
  building in St. Johnsbury owned by David Pezdirtz.  The building contains
  13 apartments, access

  

  to which is through a common hallway and stairs.  Perceiving that defendant
  was responsible for  certain disturbances that had occurred at the
  apartment building,(FN1) Pezdirtz decided to ban  defendant from the
  building and caused a notice against trespass to be served on her on
  October  18, 1996.  Among those Pezdirtz informed of this action was Mary
  Noyes, a tenant in the  building.  Defendant maintained a friendship with
  Mary Noyes' daughter, Catherine Noyes, who  was not herself a tenant but
  who was living in her mother's apartment on a temporary basis with  the
  knowledge and consent of Pezdirtz.  Police responded to a call at the
  apartment building on  December 5, 1996 and found defendant standing
  outside of the building but on the premises.  She  told the police that she
  was aware of the trespass notice served on her at Pezdirtz's direction but 
  that she was on the premises visiting friends. Defendant was charged with
  trespass in violation of 13 V.S.A. § 3705(a)(1).  Section 3705  of Title 13
  states, in part, that:

     (a) A person shall be imprisoned for not more than three months or 
     fined not more than $500.00, or both, if, without legal authority or 
     the consent of the person in lawful possession, he enters or remains 
     on any land or in any place as to which notice against trespass is 
     given by:

               (1) Actual communication by the person in 
               lawful possession or his agent or by a 
               law enforcement officer acting on behalf 
               of such person or his agent . . . .

  

       Defendant moved to dismiss the action pursuant to V.R.Cr.P. 12(d),
  alleging that the State  was unable to prove one element of the offense:
  that the landlord was "in lawful possession" of  the apartment's parking
  area, and therefore authorized to issue the notice of trespass.  The trial 
  court denied the motion, and defendant entered a conditional plea of nolo
  contendere, reserving  the right to appeal the denial of her motion to
  dismiss.  This appeal followed. The standard for addressing a motion to
  dismiss for lack of a prima facie case under Rule  12(d) is "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."  State v.
  Fanger, 164 Vt. 48, 51, 665 A.2d 36, 37  (1995).  We must determine whether
  the state met its burden in demonstrating that it had  "substantial,
  admissible evidence as to the elements of the offense challenged by the
  defendant's  motion."  Id. (quoting V.R.Cr.P. 12(d)(2)).  We agree with
  defendant that proof of the landlord's  having issued a notice against
  trespass is insufficient to sustain a conviction in these  circumstances.

       When required to construe a statute, "our overriding objective must be
  to effectuate the  intent of the Legislature."  State v. Read, 165 Vt. 141,
  147, 680 A.2d 944, 948 (1996).  Our first  step in ascertaining the
  Legislature's intent "is to look at the language of the statute itself
  [because]  we presume the Legislature intended the plain, ordinary meaning
  of the language."  State v.  O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946
  (1996).  A review of the plain meaning of  § 3705(a)(1) reveals that the
  state must prove four elements to obtain a conviction under the  statute: 
  (1) that a notice against trespass has been given to defendant by "the
  person in lawful  possession" or an agent of that person; (2) that
  defendant entered or remained on land or in a  place in the face of the
  notice; (3) that defendant had no legal authority to do so; and (4) that 
  defendant did not have consent of the person in lawful possession.

       Defendant urges us to find in her favor based on a determination that
  the landlord was not  in lawful possession and thus could not generate the
  requisite notice against trespass.  We 



  conclude, however, that whether the landlord was in lawful possession is
  irrelevant because the  tenant, Mary Noyes, was clearly also in lawful
  possession and the State has produced no evidence  to suggest defendant
  lacked her consent to be on the premises.

       Section 3705(a)(1) does not define many of its essential terms,
  leaving them to be  interpreted here in the context of the common law
  governing landlord-tenant relations.  We must  assume that the statutory
  terminology is consistent with the common law, see State v. Oliver, 151 
  Vt. 626, 627, 563 A.2d 1002, 1003 (1989), also taking care to construe the
  statute strictly and  in a manner most favorable to the accused so that we
  do not create criminal liability outside the  contemplation of the
  legislature, see State v. Galusha, 164 Vt. 91, 93, 665 A.2d 595, 596
  (1995).

       The common law is clear that the landlord may not prevent invitees or
  licensees of the  tenant from entering the tenant's premises by passing
  through the common area.  See Folgueras  v. Hassle, 331 F. Supp. 615, 625
  (W.D. Mich. 1971); State v. Schaffel, 229 A.2d 552, 561-62  (Conn. Cir. Ct.
  1966); People v. Rynberk, 415 N.E.2d 1087, 1091 (Ill. Ct. App. 1980).  
  Moreover, the law is clear that an invitee or licensee who does so, even
  after a specific  prohibition by the landlord, is not a trespasser and does
  not violate a criminal trespass statute.  See L.D.L. v. State, 569 So. 2d 1310, 1312 (Fla. Dist. Ct. App. 1990); Arbee v. Collins, 463 S.E.2d 922,
  925 (Ga. Ct. App. 1995); Ellis v. Knowles, 81 S.E.2d 884, 885 (Ga. Ct. App. 
  1954); Commonwealth v. Richardson, 48 N.E.2d 678, 683 (Mass. 1943); Morra
  v. Hill, 175 A.2d 824, 825-26 (N.H. 1961); Williams v. Lubbering, 73
  N.J.L. 317, 319 (N.J. 1906); City of  Kent v. Hermann, 1996 WL 210780, at 3
  (Ohio Ct. App. 1996).  Although a tenant may  expressly or impliedly agree
  with the landlord to limit the rights of third persons entering the 
  premises, and a landlord may impose reasonable regulations on the use of
  common areas "for the  protection of the premises themselves or of other
  tenants," Arbee, 463 S.E.2d  at 925 n.1 (quoting  Restatement (Second) of
  Torts § 189 cmt. c), that was not the basis of this prosecution.

       Rather, the State filed and pursued this case solely on the theory
  that only the non-consent  of the landlord was needed for a conviction and
  that the consent of a tenant to defendant's

  

  presence in the common area was irrelevant.  The information stated that
  defendant was on the  premises "without legal authority or the consent of
  the person in possession, David Pezdirtz."  The affidavit of the arresting
  officer indicates that he went to the apartment building in response  to a
  call from Pezdirtz stating that defendant was at the apartment building. 
  In response to the  motion to dismiss, the State offered only the evidence
  of Pezdirtz that defendant was on the  premises without his consent.

       The State had an obligation to file a "plain, concise and definite
  written statement of the  essential facts constituting the offense
  charged," V.R.Cr.P. 7(b); see State v. Kreth, 150 Vt. 406,  407, 553 A.2d 554, 555 (1988), and to prove the facts necessary to constitute the crime,
  see State  v. Baker, 154 Vt. 411, 414, 579 A.2d 479, 480 (1990).  It did
  not discharge its duty to plead or  prove the absence of tenant consent,
  even when the tenant involved became known.

       This case is virtually identical to two reported decisions, Bean v.
  United States, 709 A.2d 85 (D.C. Ct. App. 1998) and L.D.L., and both
  involve similar statutes.  In Bean, defendant was  barred from an apartment
  complex and was arrested in the common area for returning to the  complex. 
  Unlike this case, the landlord and prosecution admitted that a tenant could
  consent to  defendant's presence, but failed to show there was no consent. 
  The District of Columbia Court  of Appeals reversed defendant's conviction
  because "in order to establish that Bean was present  against the will of
  the person lawfully in charge, the prosecution was required to prove beyond 
  a reasonable doubt that Bean was not on the premises for a legitimate
  reason, e.g., to visit a  resident."  Bean, 709 A.2d  at 87.

       In L.D.L., a juvenile was found in the common area of an apartment
  complex from which  he had been banned.  His brother, grandmother and
  friend lived in the complex.  Although the  trial court found that the
  state failed to prove that L.D.L. "wasn't there by invitation or by 
  implied invitation of the lessee," it ruled that only the lessee's
  permission mattered.  L.D.L., 569 A.2d  at 1312.  The Florida Court of
  Appeals reversed the criminal conviction because the  "landlord generally
  does not have the right to deny entry to persons a tenant has invited to
  come  onto his

  

  property."  Id. For the reasons that were determinative in Bean and L.D.L.,
  we conclude that the State  failed to show that it could prevent the grant
  of a motion for acquittal at trial.  See V.R.Cr.P.  12(d)(2).  The trial
  court should have granted the motion to dismiss.

       Reversed.

  
                               FOR THE COURT:


                               ____________________________________    
                               Associate Justice

--------------------------------------------------------------------------------
                                  Footnotes


FN1.  Pezdirtz testified at the hearing on the dismissal motion that
  he had experienced "a lot of  trouble" with defendant and "had to evict
  her," explaining:

     She had been causing trouble with a lot of the other tenants.  We 
     had tenants threaten to leave because of her and her boyfriend at the 
     time who had threatened her.  She had put a no trespass order 
     against the man who was the manager of the unit.  We had one 
     person who was the manager, David Timson, and I believe at one 
     point they had cross purposes unlawful trespass against each other 
     on individual apartments, and she created a lot of problems, and we 
     did not want her on the property . . . .

  Tr. of 2/20/97 hr'g at 6.