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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-174

                                      FEBRUARY TERM, 2015

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Michael Hughes                                        }    DOCKET NO. 823-7-13 Bncr

                                                            Trial Judge: Nancy S. Corsones

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

       Defendant appeals jury convictions of unlawful trespass, possession of burglary tools,
and burglary. We affirm.

         At approximately five o’clock in the morning on July 28, 2013, police responded to an
activated alarm at an accounting business in the Town of Bennington. Upon arrival at the scene,
the officers observed an outside door half open and a padlock hanging from the door with screws
removed and laying on the ground. The door is at the top of a cement stairwell that leads down
to an inside locked basement door, which had not been disturbed. The stairwell was dirty and
full of cobwebs. As it turned out, nothing was missing from the business.

        While at the scene, one of the officers observed an individual riding a bicycle away from
the immediate area. An officer intercepted and identified the bicyclist, who turned out to be
defendant, while the others investigated the nearby grounds. Defendant had a single-sling
backpack and was wearing a hooded sweatshirt covered in cobwebs. He told the officer that he
was coming from a friend’s house. The officer, with defendant’s permission, looked inside
defendant’s backpack, which contained, among other things, tinsnips and a reciprocating saw
with two metal-cutting blades. Meanwhile, the other officers observed a set of bicycle tire tracks
in the wet grass on the other side of a hedgerow located twenty to thirty feet from the basement
door. One of the other officers questioned defendant. A transcript of that recorded conversation,
with some redactions, was given to the jury during defendant’s trial.

        Defendant was arrested and taken to the police station, where he waived his Miranda
rights and agreed to be interviewed. At trial, the jury was given a transcript of that interview,
with some redactions, and also viewed a portion of the video interview.

       Defendant was charged with unlawful trespass, possession of burglary tools, and
burglary. Following a two-day trial, the jury convicted him of all three charges. He stipulated to
being a habitual offender and received a sentence of five-to-fifteen years to serve. On appeal,
defendant argues that: (1) the evidence was insufficient to convict him of burglary or possession
of burglary tools; (2) the trial court committed plain error by failing to instruct the jury that, to
convict him of possessing burglary tools, they must find that the tools were adapted and designed
for a burglarious purpose; and (3) it was plain error, in violation of his right not to be placed in
double jeopardy for the same conduct, for the trial court to submit to the jury both the unlawful
trespass and the burglary charges.

        The standard of review regarding defendant’s claim of insufficiency of the evidence is
well-settled. In determining whether the State presented sufficient evidence to support a jury
verdict, we view the State’s evidence most favorably to the prosecution and “determine whether
that evidence sufficiently and fairly supports a finding of guilt beyond a reasonable doubt.”
State v. Albarelli, 2011 VT 24, ¶ 17, 189 Vt. 293 (quotation omitted). Questions of credibility
raised by the evidence at trial are entirely within the province of the jury, and thus the trial court
may grant “a judgment of acquittal only if the State fails to offer any evidence to substantiate a
jury verdict.” State v. Hammond, 2012 VT 48, ¶ 14, 192 Vt. 48 (quotation omitted). But
“evidence that gives rise to mere suspicion of guilt or leaves guilt uncertain or dependent on
conjecture is insufficient” to support a conviction. Albarelli, 2011 VT 24, ¶ 17 (quotation
omitted).

        Defendant first contends that, with respect to the burglary conviction, the evidence was
insufficient for the jury to find either that he entered the building or that he intended to commit
larceny. We disagree. The State presented the following evidence at trial pointing to
defendant’s guilt. Police observed defendant at approximately five o’clock in the morning
bicycling away from the area where the burglary occurred. Police also observed bicycle tire
tracks on the other side of a hedgerow separating that area from the adjoining property where
defendant was seen riding away. Those tire tracks appeared to match the knobby tire tracks on
the bicycle defendant was riding. In his interview with police after he was given his Miranda
rights, defendant made several statements that the jury could have considered incriminating in
nature. At one point during the interview, even though he had previously denied being at the
scene of the crime, defendant essentially admitted his presence that morning at the door where
the alarm was triggered. He told the interviewing officer that the door was open, that the
padlock was already off and hanging from the door, but claimed that he “didn’t go all the way
in.” When the officer reminded him that they found him covered in cobwebs and that the
stairwell inside the door was full of cobwebs, he responded that he was just covered in leaves
from riding his bike.

       At another point during the interview, he stated: “Maybe my intentions weren’t good.”
He followed up this statement with these comments:

                 Maybe I did . . . you know what I mean? Maybe I did and maybe
               I do want to talk to you, maybe I don’t really want to lose my kids,
               maybe I just f_____ up. . . . [O]k, it could have been worse . . . my
               intentions weren’t good to be out tonight, I was up to shady
               business.

        He also told the officer that there was no purpose in going in any door, but “my intentions
would be if I was to go in through the door then I would probably be trying to . . . rob
something.” He then proceeded to downplay his actions, stating that “if I took something, . . . I
would . . . see that you know that I f_____ up.” He explained: “It could have been worse though,
I could have done something really bad. I could have . . . really burglarized somewhere, I could
have really robbed somewhere. What if people [were] in the . . . building, you know what I
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mean? That’s occupied. I’m . . . screwed?” When the officer encouraged him to admit what he
had done and told him that he had not said anything yet, defendant stated: “Well, I tried to put
my . . . foot in my own mouth of course I’m not gonna . . . screw myself . . . . I got a lot to lose.”
One of the officers also testified that during processing, after the interview had been completed,
defendant stated that he really wanted to tell the officer what he had done but was scared to do
so. Another officer testified that during processing defendant stated that he never made it all of
the way in and that there were no fingerprints or tool marks that would suggest that he had
committed a crime.

        Defendant is correct that these and other statements he made to police do not amount to
an unequivocal admission that he entered the building with intent to commit a burglary. But the
statements, in combination with other circumstantial evidence such as his possession of tools that
could aid in a burglary and the fact that police found him nearby, before dawn, covered in
cobwebs, were sufficient for the jury to conclude beyond a reasonable doubt that defendant did
in fact enter the building intending to burglarize the premises. “Intent 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 (1988). This is one of those rare cases where defendant’s own
testimony supports the circumstantial evidence as to his actions and his intent.

       Defendant also argues that the evidence was insufficient to prove that he possessed his
tools with the intent to commit a burglary. This argument rests on the assumption that the
evidence was insufficient to demonstrate that he intended to commit a burglary—an argument
that we have rejected.

        Next, defendant argues the trial court committed plain error by instructing the jurors on
the possession-of-burglary-tools charge without requiring them to find that the tools were
“adapted and designed” for a burglarious purpose. We find no plain error. Our statute
criminalizes the possession of tools “adapted and designed for cutting through, forcing or
breaking open any building, room, vault, safe or other depository, in order to steal therefrom
money or other property, knowing the same to be adapted and designed for such purpose, with
intent to use or employ the same therefor.” 13 V.S.A. § 1204. There being no Vermont model
jury instruction on this offense, the State proposed a model jury instruction from Massachusetts,
which has a nearly identical statute that also uses the “adapted and designed” language twice in
the same manner as the Vermont statute. See Mass. Gen. Laws ch. 266, § 49. At the charge
conference, defendant’s attorney did not “see the State’s proposed instructions as being
inaccurate for our law,” but offered a Florida instruction as “a more succinct version of the
same.” The court elected to proceed with the Massachusetts instruction and charged the jury as
follows:

                 To qualify as a burglary tool, it is not necessary that a tool or
               implement be designed or useable only for unlawful purposes.
               Items which are commonly used for unlawful purposes such as
               screwdrivers or chisels or kitchen knives are to be considered
               burglary tools if they can be used to break into a building, room,
               vault, safe or other depository. And are possessed for that reason.

       Now, for the first time on appeal, defendant argues that the instruction does not
accurately convey the meaning of the statute. We find plain error “only in those rare and
extraordinary cases where the error is both obvious and strikes at the very heart of the

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defendant’s constitutional rights or results in a miscarriage of justice if we do not recognize it.”
State v. Campbell, 146 Vt. 25, 27 (1985); see State v. Johnson, 158 Vt. 508, 513 (1992) (stating
that the error must be so prejudicial “that it undermines confidence in the outcome of the trial”
(quotation omitted)). Thus, we 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.” State v. Butson, 2008 VT 134, ¶ 15, 185 Vt. 189.

         In this case, defendant cannot demonstrate that the error is obvious. Indeed, the court
was offered a model instruction from a neighboring state having a statute essentially identical to
the Vermont statute. The fact that the statute criminalizes possession of tools adapted and
designed for cutting through depositories does not necessarily mean that the tools have to be
adapted and designed for a burglarious purpose. Compare Burrell v. State, 429 So. 2d 636, 639
(Ala. Crim. App. 1982) (interpreting statute similar to 13 V.S.A. § 1204 and holding that
restricting application of statute only to tools especially designed for burglars “would emasculate
the statute”), and Commonwealth v. Tivnon, 8 Gray 375, 380-81 (Mass. 1857) (interpreting
similar statute as applying to tools designed for lawful uses but suitable for unlawful uses), with
State v. Warner, 696 P.2d 1052, 1057 (Or. 1985) (interpreting statute prohibiting use of tools
adapted, designed or commonly used for forcible entry and holding that tool “must actually be
modified in some way to serve the unlawful endeavor”), and People v. Baer, 465 N.Y.S.2d 368,
368 (N.Y. App. Div. 1983) (concluding that duplicate room key stolen from hotel manager could
not serve as basis for possession of burglar’s tools under statute prohibiting use of tools adapted,
designed, or commonly used for facilitating larceny). We do not decide the merits of this issue,
but conclude that if there was any error, the error was not obvious, and thus we find no plain
error.

        Finally, defendant argues that it was plain error for the trial court to submit to the jury
both unlawful trespass and burglary charges because doing so plainly violated his right not be
placed in double jeopardy for the same conduct. Again, we find no plain error. The Double
Jeopardy Clause provides that no person may “be subject for the same offense to be twice put in
jeopardy of life or limb.” U.S. Const. amend V. Because legislative bodies are empowered to
define crimes and fix punishments and courts may not impose more than one punishment for the
same offense, “the Clause is best understood . . . as limited to assuring that the court does not
exceed its legislative authorization.” State v. Neisner, 2010 VT 112, ¶ 11, 189 Vt. 160
(quotation omitted). The Clause does not preclude the Legislature from imposing multiple
punishments, “but its intent to do so must be clear.” State v. Grega, 168 Vt. 363, 382 (1998).
Hence, “[w]hen a defendant is tried in a single trial for two statutory offenses that criminalize the
same conduct, whether or not a conviction and sentence may be had under each statute is a
question of legislative intent, not constitutional prohibition.” Id.

        When, as in this case, there is no explicit statement of legislative intent to impose
multiple punishments, “we apply as a rule of statutory construction the test first enunciated by
the Supreme Court in [Blockburger v. United States, 284 U.S. 299, 304 (1932)].” State v. Ritter,
167 Vt. 632, 632 (1998) (mem.). Under the Blockburger test, which seeks “to divine whether the
legislature intended to punish two separate offenses or one,” Grega, 168 Vt. at 382, we consider
two offenses to be the same offense for double jeopardy purposes unless each offense “requires
proof of a fact which the other does not.” Blockburger, 284 U.S. at 304.



                                                 4
         Defendant was charged with violating 13 V.S.A. § 3705(c), which, in relevant part,
criminalizes the entry of a normally locked nonresidential building, and 13 V.S.A. § 1201(a),
which criminalizes the entry of a building without license or privilege with the intent to commit
one of several enumerated crimes, including petit larceny. In State v. Savo, 139 Vt. 644, 647
(1981), this Court held that unlawful trespass is not a lesser included offense of burglary because
unlawful trespass includes elements—that normal access to the building be locked or that certain
methods of notice against trespass be employed—not included in burglary. Thus, the unlawful
entry charge includes the element of locked access not included in the burglary charge, and the
burglary charge includes an element of intent to commit other crimes not included in the
unlawful entry charge. Defendant acknowledges our holding in Savo, but argues that our case
law since Savo has not required that double jeopardy be found only when one offense is a strict
lesser included offense of the other. Defendant presents a convoluted argument for why Savo
should not control in this instance, but presents no case law in which a double jeopardy violation
has been found when a defendant was charged with both unlawful trespass and burglary. Just as
with his second argument, defendant fails to demonstrate that the court committed an obvious
error, if any error at all, in submitting both charges to the jury. Accordingly, we reject his plain-
error argument on appeal.

       Affirmed.

                                                 BY THE COURT:


                                                 _______________________________________
                                                 Paul L. Reiber, Chief Justice

                                                 _______________________________________
                                                 John A. Dooley, Associate Justice

                                                 _______________________________________
                                                 Harold E. Eaton, Jr., Associate Justice




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