State v. Damon

State v. Damon (2004-333); 178 Vt. 564; 878 A.2d 256

2005 VT 54

[Filed 02-May-2004]

                                 ENTRY ORDER

                                 2005 VT 54

                      SUPREME COURT DOCKET NO. 2004-333

                              MARCH TERM, 2005

  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }	District Court of Vermont,
       v.	                       }	Unit No. 1, Windham Circuit
                                       }	
  Joshua Lee Damon	               }
                                       }	DOCKET NO. 122-1-04 WmCr

                                                Trial Judge: John P. Wesley

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Defendant, Joshua Damon, was charged with aiding in the
  commission of petit larceny, a misdemeanor.  13 V.S.A. § 2502.  Defendant
  moved to dismiss for lack of a prima facie case, arguing that the crime of
  aiding in the commission of a misdemeanor does not exist in Vermont, and
  even if such a charge exists, the State failed to provide sufficient
  evidence to support the charge.  The trial court denied defendant's motion
  to dismiss, and defendant appealed.  We affirm.

       ¶  2.  The facts are as follows.  One afternoon, two people reported
  that their purses had been stolen from their vehicles which were parked at
  businesses on Putney Road in Brattleboro.  The first person parked her
  truck in a grocery store lot and reported that someone had broken her
  pickup truck's rear side window and stolen her purse.  No witnesses came
  forward to report the theft. Approximately one half hour later, another
  person reported that someone stole her purse from her car that was parked
  at a gas station down the street from the grocery store.  The gas station
  clerk observed the theft and described the individual who stole the purse
  as a white male wearing a ball cap with flames on it.  The clerk witnessed
  the male get out of a small blue car and observed another white male with
  dark hair and a goatee, the defendant, also emerge from the vehicle.  The
  clerk explained that the second male was on his way to the bathroom behind
  the building when the male wearing the ball cap took the purse.

       ¶  3.  That evening, a gas station clerk from another gas station on
  Putney Road called in response to police radio communications to report
  that the suspects had just been at his store in a blue car.  He noted that
  one of the individuals was wearing a hat with flames on it and provided the
  vehicle's make and license number.  A few minutes later, an officer pulled
  over a car matching that description on Putney Road.  Defendant was inside
  the vehicle along with Brian Whidden, the male wearing the ball cap.  The
  officer observed a flashlight and crowbar next to the front seat.  

        
       ¶  4.  An officer read defendant his Miranda rights, and defendant
  admitted that he had driven the car into the grocery store lot and had
  watched while Whidden smashed the pickup truck's window.  Defendant also
  admitted driving Whidden from the grocery store to the first gas station. 
  Defendant stated that he did not know if Whidden had stolen anything at
  that time.  Defendant informed the officer that Whidden had thrown the
  purses out of the car window while defendant drove the car over a bridge.

       ¶  5.  The State charged defendant with "participat[ing] in the
  commission of a misdemeanor . . . in violation of 13 V.S.A. Section 2502." 
  Defendant moved to dismiss arguing that "no statute nor Vermont case law .
  . . supports [a charge of aiding in the commission of a misdemeanor]," and
  even if such a charge exists, it is "unsupported by the facts."  The trial
  court held that it is well established that a "person who knowingly and
  intentionally participates in the commission of a misdemeanor may be
  prosecuted as if he were a principal."  The court also concluded that,
  based on the evidence,  the State's theory that defendant was acting as a
  wheel man for Whidden was a fair and reasonable inference supported by the
  evidence.  Thus, the trial court denied defendant's motion.  Defendant now
  appeals.

       ¶  6.  Defendant first argues that there is no statutory crime in
  Vermont of aiding in the commission of a misdemeanor, but only a crime for
  aiding in the commission of a felony pursuant to 13 V.S.A. § 3.  Defendant
  argues that the common law crime of aiding in the commission of a
  misdemeanor was repealed when the Legislature enacted 13 V.S.A. § 3. 
  Because this claim involves only a question of law, our review is de novo. 
  State v. Koch, 169 Vt. 109, 112, 730 A.2d 577, 580 (1999). 

       ¶  7.  Our case law has long held that "[a]ll who knowingly and
  intentionally participate in the commission of a misdemeanor are principals
  and may be convicted thereof either separately or jointly."  State v.
  Orlandi, 106 Vt. 165, 171, 170 A. 908, 910 (1934) (unrelated dicta
  overruled on other grounds by State v. Bacon, 163 Vt. 279, 658 A.2d 54
  (1995)); accord  State v. Bissonette, Jr., 145 Vt. 381, 390, 488 A.2d 1231,1236 (1985) (quoting and relying on Orlandi); State v. Sturgeon, 140
  Vt. 240, 244, 436 A.2d 777, 780 (1981) (same); State v. Sears, 130 Vt. 379,
  381, 296 A.2d 218, 219 (1972) (same); State v. Ballou, 127 Vt. 1, 3, 238 A.2d 658, 660 (1968) (same).  13 V.S.A. § 3 which states that "[a] person
  who aids in the commission of a felony shall be punished as a principal,"
  simply does not address misdemeanors or in any way indicate an attempt to
  overturn the common law crime of aiding in the commission of a misdemeanor. 
  See Langle v. Kurkul, 146 Vt. 513, 516, 510 A.2d 1301, 1303 (1986)
  (explaining that a statute changes the common law 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.")  13 V.S.A. § 3 addresses
  only felony liability and thus, did not repeal the common law crime of
  aiding in the commission of a misdemeanor. 
   
       ¶  8.  Defendant essentially argues that the 1993 amendment to the
  motor vehicle statute, 23 V.S.A. § 1711, demonstrates that the Legislature
  knows how to include misdemeanors in a statute, and thus, it consciously
  chose to exclude misdemeanors from the 1973 amendment to 3 V.S.A. § 13,
  thereby evidencing the Legislature's intent to repeal the common law rule. 
  We disagree.  The motor vehicle statute provides that: "A person who,
  whether present or absent, aids, abets, induces, procures or causes the
  commission of an act which, if done directly by him or her, would be a
  felony or a misdemeanor under a provision of this title, is guilty of the
  same felony or misdemeanor."  23 V.S.A. § 1711.  We refuse to "ascribe
  legislative intent to the mere act of omi[tting]" the misdemeanor language
  in the 1973 amendment to 3 V.S.A. § 13.  Harrington v. Gaye, 124 Vt. 164,
  166, 200 A.2d 262, 263 (1964); see also Langle, 146 Vt. at 517 (rejecting
  argument that Legislature's decision to act in one area of law, and not the
  other, evidences it's intent to repeal common law).  

       ¶  9.  Defendant argues that, even if we continue to recognize the
  crime of aiding in the commission of a misdemeanor, the State lacked
  sufficient evidence to establish a prima facie case and the trial court
  should have granted his motion to dismiss.  In reviewing a V.R.Cr.P. 12(d)
  motion to dismiss, we determine whether the evidence would fairly and
  reasonably tend to show that defendant committed the offense beyond a
  reasonable doubt by examining the evidence in the light most favorable to
  the State, excluding the effects of modifying evidence.  State v. Baron,
  2004 VT 20, ¶ 2, 176 Vt. 314, 848 A.2d 275.

       ¶  10.   "[W]here several persons combine under a common
  understanding and with a common purpose to do an illegal act, every one is
  criminally responsible for the acts of each and all who participate with
  him in the execution of the unlawful design."  State v. Millette, 173 Vt.
  596, 597, 795 A.2d 1182, 1184 (2002) (mem.) (internal quotation omitted). 
  Mere presence at the scene is not alone sufficient to prove participation,
  but when "such presence is by preconcert with the design to encourage . . .
  or . . . if it should become necessary, to render assistance, then, . . .
  there is participation."  Orlandi, 106 Vt. at 171, 170 A.  at 910.  

       ¶  11.  Examining the evidence in the light most favorable to the
  State, evidence existed to prove beyond a reasonable doubt that defendant
  aided in the commission of petit larceny under 13 V.S.A. § 2502.  Defendant
  admitted to: (1) providing Whidden transportation to the grocery store
  where the first purse was stolen; (2) watching Whidden steal the purse; (3)
  and driving Whidden from the grocery store to the first gas station where
  Whidden stole another purse.  These admissions support a reasonable
  inference that defendant aided in the thefts.  Additionally, three
  witnesses saw defendant and Whidden together during the time period when
  the two thefts occurred.  When the officer found the suspects in the car,
  he noticed a crowbar and a flashlight in the front seat.  This
  circumstantial evidence, coupled with defendant's admissions, reasonably
  tend to show beyond a reasonable doubt that defendant committed the
  offense.

       Affirmed.

                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
    
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       ________________________________________
                                       Frederic W. Allen, Chief Justice (Ret.)
                                       Specially Assigned