State v. Brennan

Annotate this Case

State v. Brennan (2000-050); 172 Vt. 277; 775 A.2d 919

[Filed 01-Jun-2001]

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. 2000-050

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Bennington Circuit

Robert J. Brennan September Term, 2000

David A. Howard, J.

William D. Wright, Bennington County State's Attorney, and Brian K. Marthage,
Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

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

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

JOHNSON, J. Defendant Robert Brennan appeals from a conditional
guilty plea to the charge of 13 V.S.A. § 2503, larceny from the person.
The district court granted the State's motion to amend the initial
misdemeanor charge of 13 V.S.A. § 2502, petit larceny to a felony charge of
larceny from the person. Defendant argues that larceny from the person
requires that the property stolen must literally be attached to or
touching the owner when stolen in order to satisfy the statute. We
disagree that the items must be directly touching the victim but find that
the evidence does not support the heightened charge. We reverse.

On September 9, 1999 at approximately 10:50 a.m., Priscilla Nicholson,
accompanied by a friend, picked up defendant at the on-ramp to Route 7 in
Manchester, Vermont. Defendant sat in the

backseat of the vehicle near some of Nicholson's personal belongings,
including her purse. When Nicholson reached Bennington, Vermont, she
dropped defendant off and continued to her destination. Soon after, she
realized her purse had been opened and eighty dollars had been stolen.
She contacted the police, giving a physical description of defendant. She
provided other information defendant had volunteered during the ride, such
as his name, address, and place of work. Later that afternoon, defendant
was taken into custody for questioning. He admitted riding in Nicholson's
car and was cited for petit larceny, defined as the theft of goods or
property worth less than $500.00. 13 V.S.A. § 2502.

On October 6, 1999, the State's Attorney moved to amend the
information to a violation of 13 V.S.A. § 2503, larceny from the person, a
felony. Larceny from the person is defined as stealing or attempting to
steal "from the person and custody of another." 13 V.S.A. § 2503.
Defendant moved to dismiss the amended information, but the court granted
the amendment to the information on October 29, 1999. The court held that
the statute was intended to give added protection against "thefts that
presented a high risk of actual confrontation" and to "cover thefts from
the immediate presence and control of an owner." The court relied on
another district court case, State v. Shatney, 890-6-98Wmcr, in which,
under similar circumstances, that court held larceny from the person did
not require "a taking from the very person or body of the victim."

Defendant was sentenced to one to three years imprisonment, all
suspended and eighty dollars restitution. He entered the conditional plea
agreement, retaining his right to appeal the court's decision and order.
His appeal presents a case of first impression in Vermont.

At issue is the meaning of "from the person and custody of another."
13 V.S.A. § 2503. Defendant argues on appeal that § 2503 requires that
the property taken must be attached to or on the owner's body at the time
of theft. Defendant reasons that since Nicholson's purse was in

the back seat of the vehicle and not directly touching her, the property
was not literally taken "from the person." Thus, defendant argues, the
physical contact requirement of the statute was not met. Defendant
supports his claim by contrasting § 2503 with similar sections of the
Vermont criminal statutes, such as 13 V.S.A.§ 608, assault and robbery.
Unlike § 2503, 13 V.S.A § 608 specifically punishes assaultive theft that
occurs either "from his person or in his presence." Had the legislature
intended larceny from the person to apply to property in the immediate
presence of the person, defendant contends it would have expressly used
the language found in § 608; because the language "in his presence" is
absent from § 2503, the crime should not be interpreted to include it.
Defendant also argues that his interpretation of § 2503 is consistent with
common law because the statute was originally enacted to punish
pickpockets, who necessarily have direct contact with the property owner's
person to accomplish the theft. Finally, defendant claims that if § 2503
is read broadly, i.e., to include the concept of "in his presence," then
the trial court has created a new crime, namely 'larceny from the person
or presence of another,' which violates defendant's due process rights.

In response, the State contends that the phrase "from the person" has
been used at common law to describe the theft of objects from the
immediate presence of the owner as well as literally attached to the
owner. The State claims that because Nicholson kept her purse sufficiently
close to her body and under her immediate control, the statute is
satisfied; therefore, the charge of larceny from the person is
appropriate in spite of the fact that the purse was located in the rear
seat of her car. The State also argues that the history of the statute
demonstrates a legislative intent to construe § 2503 broadly, to include
"in his presence." The State claims that evidence of this intent is based
on the addition of the phrase "and custody of another" to the statute in
1880, and the additional language emphasizes that the offense is comprised
of two

elements: 1) the taking of property from an individual's person; and 2) the
taking of property from an individual's custody. Thus, the State
concludes that if the statute is interpreted narrowly, i.e., to exclude
the concept of "in his presence," then the phrase "and custody" will be
rendered meaningless, which is contrary to the intent of the legislature.

In construing a statute, "our principal goal is to effectuate the
intent of the Legislature." Tarrant v. Department of Taxes, 169 Vt. 189,
197, 733 A.2d 733, 739 (1999). In determining legislative intent, we
begin with the plain meaning of the statutory language. If legislative
intent is clear from the language, we enforce the statute "according to
its terms without resorting to statutory construction." Id. Furthermore,
we "presume that all language in a statute was drafted advisedly, and that
the plain ordinary meaning of the language used was intended." Committee
to Save Bishop's House v. Medical Ctr. Hosp. of Vermont, 137 Vt. 142, 153,
400 A.2d 1015, 1021 (1979) (citations omitted). We must not to allow a
significant part of a statute to be rendered surplusage or irrelevant.
See State v. Yorkey, 163 Vt. 355, 358, 657 A.2d 1079, 1081 (1995).

As Blackstone recorded in 1771, the origin of larceny from the person
can be traced to the Roman and Athenian legal systems, where "saccularii,"
or cutpurses, were punished more severely than ordinary thieves. 4
William Blackstone, Commentaries 241 (4th Ed. 1771). Following these
ancient law traditions, the English Statutes at Large incorporated
specifically enhanced penalties for similar acts. Blackstone, supra; see
8 Eliz. c. 4 § 2 (1565) (removing benefit of clergy for pickpurses and cut
purses convicted of "felonious taking of any money, or goods, or chattels,
from the person of any other, privily without his knowledge"). The
penalties were more severe than larceny "owing to the ease with which such
offenses are committed, and

the difficulty in guarding against them." Blackstone, supra. Thus, the
offense was a compound crime, made up of the simple theft, but aggravated
by an invasion of one's person. Id. at 229.

In contrast to the private stealing done by pickpockets, Blackstone
distinguished another form of larceny from the person: robbery. It is
characterized by "open and violent assault" on a person where property is
stolen through fear and an involuntary dispossession. Id. at 241. Under
this form of larceny from the person, the property need only be in the
presence of its owner and not literally attached to the owner's body. Id.
at 242; see also 2 W. LaFave & A. Scott, Substantive Criminal Law §
8.11(c), 442 n. 28 (2d ed. 1986).

In Vermont, the first statute addressing larceny from the person was
enacted in 1861. The wording of the statute is consistent with the common
law understanding noted by Blackstone and appears to differ little from
the traditional anti-pickpocketing statutes. Its original form stated that
the crime occurred "[i]f any person shall feloniously steal from the person
of another, any money, or other property." 1861, No. 19, §1 (emphasis
added). It provided for a severe sentence of up to ten years imprisonment
and/or a fine not in excess of one thousand dollars.

In 1862, the larceny statutes were substantially revised. According
to the General Statutes of Vermont, larceny applied to "[e]very person who
shall commit the offense of larceny, by stealing, of the property of
another, whether from his actual or constructive possession" 1862 G.S. ch.
113, § 10 (emphasis added). It appears that this enactment was meant to
synthesize various larceny statutes including larceny, 1850 C.S. ch. 104,
§ 8, larceny from the person, 1861, No. 19, § 1, larceny of specific
materials, 1864, No. 26, § 1, and larceny resulting from a

trespass, 1865, No. 25, § 1. (FN1) Larceny from the person, as a specific
crime does not appear in the General Statutes. The revision does,
however, include the separate crime of attempt of larceny from the person.
This statute punishes "[e]very person who shall attempt to commit the
offense of larceny by feloniously stealing from the person of another any
money or other property, then about his person and in his actual custody."
1862 G.S. ch. 113 § 11 (emphasis added). Although only a crime of
attempt, the additional language, on its face, indicates an expansion of
the crime. In contrast to the phrase "from the person" (from the 1861
statute), the modifier "about his person and in his actual custody" refers
to something more than physical attachment to the owner's body. It is
reasonable to assume that the term "custody" refers to possession and
control. Black's defines custody as "[t]he care and control of a thing or
person for inspection, preservation, or security." Black's Law Dictionary
390 (7th ed. 1999).

In 1880, the language of the statute was changed again as a result of
legislation to revise and update all of the statutes of Vermont. 1878,
No. 127. The crime of larceny from the person was reinstated, using
language similar to that of the 1862 attempt crime. The language was
condensed from "then about his person and in his actual custody" to the
phrase "from the person and custody of another." 1880 R.L. § 3892
(emphasis added). Thus, despite reinstating the completed crime of
larceny from the person from an attempt crime, there is no indication that
the legislature was altering the nature of the crime itself. Indeed,
according to the Commissioner's Report upon the Revision of the Laws,
submitted to the Governor in 1880, the purpose of the change was to revise
the statutes into "plain and simple language" with the "intent to preserve
the law as far as possible, unchanged" and to remove phraseology that had
become obsolete.

C.W. Willard and W.G. Veazey, Commissioners, Report upon the Revision of
the Laws, 15, 10 (1880) (emphasis in original).

Although there have been several general revisions to the statute
since 1880, the express language of "from the person and custody of
another" has remained consistent for over 120 years. "When changes in
statutes come about only as a result of a revision, caution is required in
determining whether or not any substantive change in the law was intended.
The presumption is that there was no such intention, unless the contrary
clearly appears." Cambridge v. Underhill, 124 Vt. 237, 240, 204 A.2d 155,
157 (1964) (interpreting a statutory revision in 1947 and holding that no
substantive change was intended). The revisions have changed the language
of the statute on occasion, but not its substantive reach. For example, a
1971 amendment omitted the phrase "in the state prison" from the penalty
element of the statute. See 1971, No. 199 (Adj. Sess.), § 15. We have
not found any contradictory evidence to indicate that a substantive
alteration was intended and, therefore, rely on the language codified in
1880.

In Vermont, there have been few cases dealing with larceny from the
person and those cases have involved property taken directly from the
person. See State v. Ladabouche, 127 Vt. 171, 172-73, 243 A.2d 769,
770-71 (1968) (theft of a wallet from the victim's body); State v. Deso,
110 Vt. 1, 6, 1 A.2d 710, 712 (1938) (explaining that "in the presence"
satisfies the robbery statute but not addressing larceny from the person
separately).

Courts in other jurisdictions have followed two major approaches to
the issue raised by this case. The first approach has pursued a strict
reading of the phrase "from the person." These jurisdictions have
required that the stolen item is physically touching the victim at the time
of theft, harkening back to the origin of the statute to punish
pickpockets. E.g., People v. McElroy, 48 P. 718, 719 (Cal. 1897); Terral
v. State, 442 P.2d 465, 465 (Nev. 1968); State v. Crowe, 384 A.2d 340, 342-43 (Conn. 1977). Two cases show the stringency of this
requirement. In People v. Huggins, 60 Cal. Rptr. 2d 177 (Ct. App. 1997),
for example, the court affirmed the conviction of grand theft "from the
person" where the victim's purse was stolen as it rested on the floor at
her feet. The basis of the conviction was that her foot was in contact
with the purse. The court held that the victim's purpose in keeping the
purse against her foot was to retain "dominion and control" over the purse
and guard against purse-snatchers. Id. at 179. Yet, in People v.Williams,
12 Cal. Rptr. 2d 243 ( Ct. App. 1992), the court reversed a conviction of
grand theft from the person where a victim's purse was taken from the car
seat beside her. The court held that in spite of the fact that the thief
reached into the car window to grab the purse, the statute did not extend
to property that had been "laid aside" from the person. Id. at 246. The
victim had hardly given up voluntary control of her purse, but the court
held that actual physical contact was necessary. Id at 247.

The other approach stems from jurisdictions that permit a broader
reading of their statutes, holding that where property is taken from the
presence or constructive control or possession of the owner, the statute
is satisfied. See, e.g., Commonwealth v. Subilosky, 224 N.E.2d 197, 206
(Mass. 1967); State v. Blow, 334 A.2d 341, 343 (N.J. Super. Ct. App. Div.
1975). Courts have reasoned that there is a constructive trespass on the
victim's person and that the heightened risk to the victim justifies an
enhanced penalty. E.g., Garland v. Commonwealth, 446 S.E.2d 628, 630 (Va.
Ct. App. 1994); see Annotation, What Constitutes Larceny "from a Person",
74 A.L.R.3d 271 (1976). In Garland, for instance, the defendant
frightened a cashier when he reached across to steal money from the cash
drawer. 446 S.E.2d at 629. The cashier was not physically touching the
cash drawer but the thief's hands came within inches of hers in order to
get the money. The court held that the money was within her immediate
control and

custody and the thief's conduct was "of an assaultive nature." Id. at 630.
Therefore, the court affirmed defendant's from the person conviction,
viewing the assault as a constructive trespass on the person. Id.

Similarly, the Supreme Court of Rhode Island held that assaultive
conduct is sufficient to justify a conviction for larceny from the person,
even though the statute does not expressly include the phrase "in his
presence." State v. Shepard, 726 A.2d 1138, 1141-42 (R.I. 1999). In
Shepard, the defendant was convicted of larceny from the person, after
crashing his car into the victim's car and threatening her. The defendant
then "entered her vehicle without her permission, when she was still dazed
from the accident and unable to retreat or withdraw" to demand compensation
for the damage. Id. at 1141. He tried to grab the victim's wallet and
cell phone, which were within her immediate presence. Relying in part on
Garland, the court affirmed the conviction of larceny from the person. It
concluded that the broader interpretation of from the person was more
consonant with the statute's purpose: "to protect the dignity and sanctity
of each person from a theft of property within that person's custody and
control while that person is present physically." Id. at 1142.

We agree with the State that a broad reading of 13 V.S.A. § 2503 is
appropriate. The statute provides for a severe punishment for thefts from
"from the person and custody of another." This language indicates a wider
scope than simply from the person's physical body. Although the State
argues that "from the person" may apply equally to items attached to and
nearby the victim, we find that this is contrary to the common law
understanding of the term. There would be no need for the legislature to
include the phrase "and custody of another" if the prior phrase "from the
person" could have two meanings. The State's construction would render a
portion of the statute surplusage, which we decline to adopt. See Yorkey,
163 Vt. at 358, 657 A.2d at 1081. It would also be puzzling why the phrase "in his presence"
augments the definition of assault and robbery when under the State's view
"from the person" would have said as much. See 13 V.S.A. § 608. A better
basis for a broad interpretation of § 2503 is that the modifier "and
custody of another" indicates the legislature intended to protect an area
or region distinct from the physical person of the victim. Thus, we find
that "and custody of another" refers to the area immediately within one's
control or presence, distinguishable from one's person. The statute,
therefore, represents a departure from the narrow strictures of the common
law, imposed by using "from the person," and by retaining the additional
language of "and custody of another."

A broader reading of the statute creates a zone of protection around a
person's body that warrants a higher penalty when a theft occurs within
this zone. In this case, the central problem we confront is whether the
zone was violated by defendant. We find that it was not, because
defendant's conduct did not satisfy any of the factors traditionally used
by other jurisdictions that have similarly interpreted larceny from the
person. We hold, therefore, that the evidence does not support the
conviction.

As discussed above, courts that have followed the broad approach have
considered a nexus of factors to determine whether larceny from the person
has been committed. Although a formal test has not been articulated,
these factors include whether the thief's conduct was "of an assaultive
nature," e.g., Shepard, 726 A.2d at 1142, whether the victim was aware of
the theft at the time it occurred because the stolen item was in the
victim's immediate presence, e.g., State v. Jones, 499 S.W.2d 236, 240 (
Mo. Ct. App. 1973), and whether the thief's actions posed a potential risk
of violence and danger to the victim, e.g., Blow, 334 A.2d at 343.

Evaluating the facts of this case in light of these factors, the
evidence does not rise to the level of larceny from the person.
Defendant's conduct was not assaultive in nature. Defendant

did not confront the victim in a threatening or violent manner. Rather,
Nicholson invited defendant into the car when she stopped to pick him up
hitchhiking. In the course of ordinary conversation, defendant revealed
accurate and personal information that facilitated his arrest later that
day. Defendant did not use force or threaten it when stealing the money,
instead he snatched the money from Nicholson's purse as it lay in the
backseat of the car while she was driving and making conversation. Nor
was Nicholson aware of the theft at the time it occurred because the purse
was in the backseat of the car. Nicholson discovered her purse had been
opened only after defendant had left the car and she had reached her
destination. Therefore, she could not have had a sense of fear or
invasion at the time her money was stolen. Admittedly, there was a
potential danger that Nicholson could have discovered the theft while
driving and been distracted from operating her motor vehicle, thereby
putting her in danger. Given the location of her purse in the backseat of
the car and the congenial nature of Nicholson's interaction with
defendant, however, this risk did not materialize. The facts of this case
do not encroach on the extended zone of protection safeguarded by larceny
from the person. Thus, we hold that defendant's conduct does not justify
the heightened charge. The crime committed was petit larceny, 13 V.S.A. §
2502, because the purse was not under the direct protection of the owner
and there was no forcible taking.

Reversed.

FOR THE COURT:

_______________________________________
Associate Justice

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

FN1. Although the volume General Statutes states that it contains the
acts passed by the legislature in 1862, in fact, the volume was not
published until 1877 and thus explains why the notations refer to session
laws passed after 1862. See 1862 G.S. at 669.

------------------------------------------------------------------------------
Concurring

No. 2000-050

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Bennington Circuit

Robert J. Brennan September Term, 2000

David A. Howard, J.

William D. Wright, Bennington County State's Attorney, and Brian K. Marthage,
Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

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

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

DOOLEY, J., concurring. I join in the result and much of the
reasoning of the majority. I would, however, interpret the statute in
accordance with its plain meaning, limiting its applicability to stealing
property that is within the actual physical control of the victim. I find
the factors used by the majority - whether the thief's conduct was
assaultive, whether the victim was aware of the theft, and the risk of
violence - to have little relevance to a determination of control. Indeed,
it is difficult to discern any difference between the standard employed by
the majority and that urged by the dissent. Both seem to look primarily
at the risk of confrontation. The only difference is in how the standard
applies to the facts of this case.

The wallet in this case was beyond the victim's actual physical
control. I would hold that § 2503 does not apply whether defendant took
the wallet surreptitiously or announced he was doing so.

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Dissenting

No. 2000-050

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Bennington Circuit

Robert J. Brennan September Term, 2000

David A. Howard, J.

William D. Wright, Bennington County State's Attorney, and Brian K. Marthage,
Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

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

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

MORSE, J., dissenting. Although I concur that larceny from the person
does not require that the property stolen be physically touching the
victim, I would affirm. Defendant entered a conditional plea of guilty
following the trial court's ruling that larceny from the person did not
require that the subject property be touching the victim when taken. We are
affirming that view of the law. Defendant has pled guilty to it.

Even if defendant had not pled guilty and there had been a motion to
dismiss for lack of a prima facie case under V.R.Cr.P. 12(d) (requiring
state to establish by admissible evidence that it has substantial evidence
as to the charged offense sufficient to withstand a motion for judgment of

acquittal at trial), it would have been properly denied. See State v.
Dixon, 169 Vt. 15, 17, 725 A.2d 920, 922 (1999) (when reviewing a motion
to dismiss, evidence must be viewed in the light most favorable to the
State, and modifying evidence is excluded from consideration). Whether the
defendant in this case committed larceny from the person should be left to
a jury to decide.

The determination whether the victim's zone of protection extended to
the backseat of her car is a mixed question of fact and law. As the
majority notes, it is the heightened risk to the victim created when the
property at issue is taken from the victim's presence and control - within
a few feet behind her on the back seat in this case - that merits the
enhanced penalty associated with larceny from the person. Ante, at 8.
That risk most certainly existed in this case, especially where the
defendant and the victim were together in a car - a small, confined space,
moving down the highway. There was a significant potential that the victim
might discover defendant taking her money from her purse, resulting in a
confrontation, fright and panic.

Because it is this very type of risk that has precipitated the
heightened penalty associated with larceny from the person, see State v.
Washington, 308 N.W.2d 422, 423 (Iowa 1981) ("theft from the victim's area
of control, because of its potential for physical confrontation with the
thief, could logically be seen as justifying an enhanced penalty")
(emphasis added); Garland v. Commonwealth, 446 S.E.2d 628, 630 (Va. Ct.
App. 1994) ("larceny from the person recognizes an enhanced societal
concern for conduct that implicates at least a potential for personal
assault") (emphasis added), I do not agree that, as a matter of law, the
facts of this case could never be considered by a jury to constitute such
a crime. If a violent confrontation or assault had actually occurred, then
an even more serious crime would have been committed, meriting an even
greater penalty. 13 V.S.A. § 608 (assault and robbery); see also State v.
Buckom, 401 S.E.2d 362, 365 (N.C. 1991) (noting that

larceny from the person differs from robbery because it "lacks the
requirement that the victim be put in fear" and occupies a "middle ground"
between robbery and traditional or petty larceny).

Furthermore, I agree with the concurrence to the extent that whether
the victim knew of the theft and whether the nature of the thief's conduct
was assaultive should not be legally controlling. Nevertheless, I do not
think that we can assume that, because the victim's wallet was in the
backseat of her car, it was out of her reach, i.e, out of her physical
control. See Washington, 308 N.W.2d at 423 (in case where victim's
billfold was taken from her purse which was located in a shopping cart,
court held that "theft from the victim's area of control" was sufficient
for conviction of larceny from the person); Garland, 466 S.E.2d at 630
(holding "larceny from the person embraces not only theft of property from
physical contact with the victim, but also theft of property that is in the
victim's possession and within his immediate custody and control")
(emphasis added); see also New York v. Belton, 453 U.S. 454, 460 (1981)
(holding that police may search the passenger compartment of a car
incident to a lawful arrest under principle that a search of the area
within the "immediate control of the arrestee" may occur and noting
"articles inside the relatively narrow compass of the passenger
compartment . . . are in fact generally, even if not inevitably, within
'the area into which an arrestee might reach in order to grab a weapon or
evidentiary ite[m]'") (quoting Chimel v. California, 395 U.S. 752, 763
(1969)) (alteration in original). These are facts that ought to be
developed at trial and decided by a jury.

I respectfully dissent.

_______________________________________
Associate Justice

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