Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.




                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-306

                                          JUNE TERM, 2015

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 George A. Mannoia                                     }    DOCKET NO. 920-8-13 Bncr

                                                            Trial Judge: Nancy S. Corsones

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

       Defendant appeals his convictions on two counts of possessing stolen property. He
argues that the evidence was insufficient to establish, with respect to both counts, that the value
of the stolen property exceeded the minimum for the crime and, with respect to the count
involving tools and an Apple computer, that he was in possession of the property. We affirm.

        The State’s information charged defendant with two counts of possessing stolen property
in violation of 13 V.S.A. § 2561(b), which provides as follows: “A person who buys, receives,
sells, possesses unless with the intent to restore to the owner, or aids in the concealment of stolen
property, knowing the same to be stolen, shall be punished the same as for the stealing of such
property.” Pursuant to 13 V.S.A. § 2501, a person who steals property valued at more than $900
may be imprisoned for up to ten years and fined up to $5000. The first count of the State’s
information states that on or about August 22, 2013, defendant “bought, received, sold,
possessed without intent to restore to the owner, or aided in the concealment of stolen property
valued in excess of $900.00, knowing the same to be stolen, to wit: CAT-TV property.” The
second count makes the same statement, but with respect to “tools and Apple Computer.” The
State sought a penalty of up to life imprisonment pursuant to the habitual offender statute, 13
V.S.A. § 11.

       A two-day jury trial was held in March 2014. The State presented eleven witnesses and
the defendant none. After the State rested, defendant moved for judgment of acquittal under
Vermont Rule of Criminal Procedure 29, arguing, with regard to the second count, that there was
no evidence the tools were stolen and, with regard to both counts, that there was no evidence as
to the value of the property. The court denied the motion, ruling, in relevant part, that a
reasonable jury could infer from the evidence presented on the cost of the property that the
property cited in each count had a value exceeding $900 at the time it was discovered in
defendant’s possession. At the conclusion of the hearing, the jury convicted defendant on both
counts. Following a sentencing hearing, the trial court sentenced defendant to two concurrent
terms of five-to-ten years to serve.

        On appeal, defendant first argues that the evidence was insufficient to establish the value
of the stolen property as to either count. “The standard of review for the denial of a V.R.Cr.P. 29
motion for judgment of acquittal is whether the evidence, when viewed in the light most
favorable to the State and excluding any modifying evidence, fairly and reasonably tends to
convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt.” State
v. Turner, 2003 VT 73, ¶ 7, 175 Vt. 595 (mem.) (quotation omitted). In reviewing a motion for
judgment of acquittal based on insufficiency of the evidence, “we cannot place ourselves in the
jury’s stead.” State v. Neisner, 2010 VT 112, ¶ 18, 189 Vt. 160. A “defendant’s guilt may be
established by . . . circumstantial evidence, and proof of facts includes reasonable inferences
properly drawn therefrom.” State v. Erwin, 2011 VT 41, ¶ 20, 189 Vt. 502 (quotation omitted);
see State v. Durenleau, 163 Vt. 8, 12 (1994) (“In assessing circumstantial evidence, the fact-
finder may draw rational inferences to determine whether disputed ultimate facts occurred.”).
The evidence, however, “must be examined both for its quality and strength; evidence that . . . is
dependent upon conjecture is insufficient.” Durenleau, 163 Vt. at 10 (quotation omitted).

        Defendant contends that the evidence on the value of the stolen property amounts to pure
conjecture. We disagree. With regard to the first count, the State presented evidence that the
three stolen high-end HD video cameras were purchased between 2011 and 2012 for just under
$5000 to $5500 apiece; that the cameras had a useful life of about ten years; and that it would
cost about the same amount of money to replace them. With regard to count two, the State
presented evidence that the stolen computer was purchased in May 2012 for over $3000 and that
the computer contained stored training videos that cost quite a bit to produce. Based on this
evidence, we agree with the trial court that a jury could reasonably infer from the purchase price
of these items that, with respect to each count, they had a value exceeding $900 at the time they
were discovered in defendant’s possession in August 2013.

        Defendant also argues for the first time on appeal that the evidence was insufficient to
demonstrate that he possessed the stolen CAT-TV property. We find no plain error, if any error
at all. While police officers were executing a warrant to search defendant’s home, defendant
informed one of the officers that he could assist in locating some cameras. Eventually, defendant
made some telephone calls and, as a result, first the three high-end HD video cameras, and then a
CAT-TV television, appeared outside his apartment. At trial, the State argued that defendant
was in constructive possession of those items. See State v. Ballou, 127 Vt. 1, 6 (1968) (noting
that actual and constructive possession often blend together and that “[i]n criminal law
possession usually means care, management, physical control, or the secret hiding or protection
of something forbidden or stolen” (quotation omitted)). Given the circumstances in this case,
where the evidence indicated that defendant was able to exercise dominion and control over the
stolen property, we find no plain error as to whether defendant possessed the property. See State
v. Butson, 2008 VT 134, ¶ 15, 185 Vt. 189 (“[W]e will reverse based on plain error only when:
(1) there was an error; (2) the error is obvious; (3) the error affects substantial rights and results
in prejudice to defendant; and (4) the error seriously undermines the fairness, integrity, or public
reputation of judicial proceedings.”). This is not one of those rare and extraordinary cases where


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the alleged error is obvious or “so prejudicial that it undermines confidence in the outcome of the
trial.” State v. Johnson, 158 Vt. 508, 513 (1992) (quotation omitted); see State v. Campbell, 146
Vt. 25, 26 (1985) (“We will find plain error only in those rare and extraordinary cases where the
error is both obvious and strikes at the very heart of the defendant’s constitutional rights or
results in a miscarriage of justice if we do not recognize it.”).

       Affirmed.

                                                BY THE COURT:


                                                _______________________________________
                                                Paul L. Reiber, Chief Justice

                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Harold E. Eaton, Jr., Associate Justice




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