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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-135

                                       JANUARY TERM, 2011

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }
    v.                                                 }    District Court of Vermont,
                                                       }    Unit No. 1, Windham Circuit
                                                       }
 Charles Chandler                                      }    DOCKET NO. 663-5-06 Wmcr

                                                            Trial Judge: Karen R. Carroll

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

        Defendant appeals his jury conviction of impeding a public officer in violation of 13
V.S.A. § 3001 (“A person who hinders an executive, judicial, law enforcement, civil or military
officer acting under the authority of this state or any subdivision thereof . . . shall be imprisoned
not more than three years or fined not more than $500.00 or both.”). We affirm.

        On March 30, 2006, a member of the Newbrook Fire Department, a volunteer member-
owned fire department that covers the Town of Newfane, became aware of a reported brush fire
on defendant’s property. After consulting the fire warden, three members of the Department
went to defendant’s property to investigate. Upon their arrival, they decided to extinguish the
fire because no permit had been given for a brush fire, and they believed the fire posed a
potential hazard. A confrontation ensued between the firefighters and defendant and his brother,
culminating in defendant grabbing one of the firefighters by the arm and walking him off his
property. The firefighters waited across the street for the fire chief. When he arrived, the chief
decided that the fire needed to be extinguished. He called the district fire warden to determine
whether they should pursue the matter or leave. The fire warden arrived at the scene and tried to
explain to defendant that the fire had to be extinguished. Defendant resisted, however, claiming
that it was a campfire, not a brush fire. Eventually, a deputy sheriff arrived and cited defendant
for impeding an officer. Following a jury trial, the jury found defendant guilty of the charge. On
appeal, defendant raises six issues.

        First, defendant argues that his conviction must be reversed because the State’s
information did not include all of the elements of the offense. As amended, the information read,
in relevant part, as follows:

                 CHARLES A. CHANDLER, in this Territorial Unit, in the
                County of Windham, at Newfane, on or about March 30, 2006,
                impeded an executive or civil officer acting under the authority of
                this state, or subdivision thereof, in violation of 13 V.S.A. § 3001.
The trial court’s jury instruction on the elements of the offense required the jury to find that (1)
defendant (2) knowingly hindered public officers (3) acting under authority of the state or its
subdivisions, (4) that defendant knew or reasonably should have known that they were public
officers, and (5) that he had no legal right to have hindered the officers.

        For the first time on appeal, defendant challenges the sufficiency of the information. He
argues that the information failed to indicate the mens rea requirement of his hindering action
and the officers’ status and further failed to indicate that the State must prove he had no legal
right to have hindered the officers. We find no deficiency requiring reversal. Our law is that “in
the absence of an objection, failure to include the mental element of an offense in the
information is not reversible error where the statute does not explicitly state that element.” In re
Carter, 2004 VT 21, ¶ 15, 176 Vt. 322. Section 3001 of Title 13 does not explicitly state any
mental elements. Regarding the requirement that defendant must have hindered an officer
without a legal right to do so, defendant has failed to make even a colorable claim of prejudice
on this alleged shortcoming. As defendant acknowledges in his brief, he strongly challenged the
notion that the firefighters had a legal right to be on his property and extinguish the fire. Plainly,
defendant understood the charge and was able to present an intelligent and complete defense to
the charge. See State v. Christman, 135 Vt. 59, 60 (1977) (“[T]he essential test is that the
complaint or other form of accusation of a criminal offense set forth charges with such
particularity as will reasonably indicate the exact offense the accused is charged with, and will
enable him to make intelligent preparation for his defense.”); see also Reporter’s Notes,
V.R.Cr.P. 12 (noting that this Court has applied standard similar to federal courts ruling that
defendants may challenge sufficiency of information for first time on direct or collateral review
only if information is so defective that it cannot reasonably be construed to charge offense for
which defendant was convicted). We find no basis to reverse the conviction on this claim of
error.

       Second, defendant argues that the trial court erroneously excused a juror after the jury
was sworn. We find no merit to this argument. Towards the end of the first day of trial, the
court held a colloquy with a juror who had told the court officer that one of the
firemen/witnesses in the case was the driver of her daughter’s school bus. Asked several times
whether she would be able to decide the case based solely on the evidence, she expressed
concerns about repercussions for her daughter depending on the outcome of the case. Her
answers gave the court no assurance that she would be able to decide the case impartially solely
based on the evidence. Therefore, the court acted well within its discretion in dismissing the
juror. See State v. Hohman, 138 Vt. 502, 510 (1980) (noting that when statutory grounds of per
se disqualification of juror for potential bias do not exist, “the question becomes whether the
juror entertains a fixed bias, or whether [s]he can decide the case solely on the evidence”)
overruled on other grounds by Jones v. Shea, 148 Vt. 307, 309 (1987).

        Third, defendant argues that the trial court erred by not granting his motion for judgment
of acquittal on grounds that he had a lawful right to burn his fire without a permit and to exclude
the firefighters. According to defendant, just as the defendant in State v. Harris, 152 Vt. 507,
509 (1989), had a right to dispossess himself of cocaine by flushing it down the toilet, he had a
right to exclude the firefighters from his property and thwart their efforts to put out the fire.
Again, we find no merit to this argument. Defendant bases his right to exclude the firefighters
on the alleged presence of snow on the ground on the day in question. See 10 V.S.A. § 2645(a)
(prohibiting open brush fires without permission of fire warden “except where there is snow on
the site”). But the existence of snow on the site was disputed at trial, and, in any event,
firefighters are authorized to enter property to investigate and extinguish fires that threaten
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public safety, irrespective of whether a landowner is required under the circumstances to obtain a
permit to burn brush. See id. § 2644(a) (giving fire warden right to enter property to extinguish
fires threatening forest); 20 V.S.A. § 2863 (giving fire marshal and assistants authority to enter
premises to perform their duties). The court did not err in denying the motion for judgment of
acquittal.

        Fourth, defendant argues that the trial court erred by not instructing the jury, as part of its
discussion of the fifth element—whether defendant had a legal right to act as he did—that it
could consider his right to burn without a permit because of snow at the site, essentially citing
the law as set forth in § 2645. Defendant acknowledges that the trial court instructed the jury
that, under Vermont law, open brush fires are forbidden without first obtaining permission from
the fire warden unless there is snow at the site. He contends, however, that he is entitled to have
his conviction reversed because this instruction was given immediately following the court’s
explanation of the five elements of the offense rather than as part of the fifth element. We
disagree. The instruction adequately informed the jury of the substance of § 2645, and thus, the
jury could have accepted defendant’s theory that he had a right to thwart the firefighters’ efforts
to put out the fire because of the presence of snow on the ground—if the jury had believed that,
in fact, there was snow at the site. Indeed, defendant reiterated this contention in his closing
argument, telling the jury that a conflict between § 2645 and more general statutory authority for
extinguishing fires created a reasonable doubt about the firefighters’ authority to extinguish his
fire that day. The trial court was understandably reluctant to give the requested instruction
within its discussion of the fifth element of the charged offense because, as noted above,
firefighters are statutorily authorized to extinguish fires under certain circumstances even if no
permit was required for the fire. This claim of error must fail.

        Fifth, defendant argues that the court committed reversible error by denying his request
that the jury be given an instruction on self-defense. At trial, defendant testified that the
firefighters physically threatened him and his brother during the incident in question and that his
actions were justified by self-defense. We conclude that any error in omission of a self-defense
instruction was not prejudicial to defendant because the jury necessarily concluded that the
firefighters were acting within their lawful authority. The trial court instructed the jury that, in
order to convict, they must find that the firefighters were acting under authority granted to them
by the state and were performing a lawful duty at the time of the alleged offense. Given this
instruction, the jury’s verdict, and the fact that self-defense is available only to repel an
aggressor’s unlawful force, see 1 W. LaFave & A. Scott, Jr., Substantive Criminal Law § 5.7, at
650-51 (1986); see also Model Penal Code § 3.04 (explaining that use of force is “justifiable
when the actor believes that such force is immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other person on the present occasion”
(emphasis added)), defendant cannot demonstrate that he was prejudiced by the omission of a
self-defense instruction. Cf. State v. McGee, 163 Vt. 162, 167 (1995) (finding no plain error in
court’s self-defense instruction because jury found that defendant had acted in course of
attempted robbery and thus was not entitled to self-defense instruction).

       Sixth, defendant argues that the trial court’s instruction referring to “public officers” in
place of executive or civil officers resulted in an information that did not charge an offense and
in a possible lack of unanimity in the verdict. We find this argument unavailing. Not only did
defendant fail to object to the court’s instruction on this point, but he himself used the same
phrase in his requests to charge the jury. The trial court defined the term public officer to
include the categories designated in 13 V.S.A. § 3001 and essentially required jurors to agree

                                                  3
that the firefighters were civil officers. As noted, defendant failed to object to the instruction at
trial, and further fails to indicate on appeal how the court’s instruction resulted in plain error.

       Affirmed.



                                              BY THE COURT:


                                              _______________________________________
                                              Paul L. Reiber, Chief Justice

                                              _______________________________________
                                              Denise R. Johnson, Associate Justice

                                              _______________________________________
                                              Marilyn S. Skoglund, Associate Justice




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