2013 VT 63


State v. Stokes (2012-003 &
2012-455)
 
2013 VT 63
 
[Filed 02-Aug-2013]
 
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 by email at: JUD.Reporter@state.vt.us or by
mail at: 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.
 
 

2013 VT 63

 

Nos. 2012-003 & 2012-455

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Addison Unit,


 


Criminal Division


 


 


John C. Stokes


October Term, 2012


 


June Term, 2013


 


 


Nancy
  Corsones, J. (2012-003)
Helen M. Toor, J. (2012-455)


 

Robert Butterfield, Addison County Deputy State’s Attorney,
Middlebury, for Plaintiff-Appellee.
 
Allison N. Fulcher of Martin & Associates, Barre, for
Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
BURGESS, J.   In these consolidated appeals, defendant
challenges his unlawful trespass conviction and his obligation, as a condition
of probation, to complete a Domestic Abuse Education Program (DAEP). 
Defendant also appeals from the court’s denial of his motion to modify his
probation conditions and its conclusion that he violated probation by failing
to complete DAEP as ordered.  We affirm.  
¶ 2.            
Defendant was charged with violating 13 V.S.A. § 3705, which prohibits a
person, without legal authority or the consent of the person in lawful
possession, from entering or remaining “on any land or in any place” as to
which notice against trespass has been given.  The unlawful trespass
charge arose when defendant refused to get out of his ex-girlfriend’s car when,
in the course of a domestic argument, she repeatedly demanded he do so. 
Defendant maintains that the inside of a car is not a “place” within the
meaning of the statute.  
¶ 3.            
The following evidence was presented at trial.  Defendant and his
ex-girlfriend have a son who was three years old at the time of the incident.
 The ex-girlfriend has custody of the child; defendant has visitation
rights.  On the date in question, the ex-girlfriend agreed to go fishing
with defendant and the child, have a cookout, and watch the Independence Day
fireworks at a local high school.  The adults were drinking during the
cookout, and defendant behaved antagonistically toward his ex-girlfriend. 

¶ 4.            
On the way to the fireworks, the ex-girlfriend decided that she and the
child were not in a good situation, and she told defendant that she planned to
go home.  As she was driving home, defendant repeatedly called and berated
her for leaving.  The ex-girlfriend reconsidered her decision and returned
to the high school, where she waited in her car while defendant took the child
to watch the fireworks. 
¶ 5.            
When defendant and the child returned, the ex-girlfriend tried to secure
the child into his car seat in the rear of her vehicle.  The child was
upset and crying so the ex-girlfriend let defendant take over.  Defendant
buckled the child into his car seat and stood with one foot in the car and one
foot out of the car, with the rear door open.  The ex-girlfriend asked
defendant to close the car door, but he ignored her.  She repeatedly told
him to get out of the car so she could leave.  When she told defendant
that she was going to call the police, he laughed at her.  The
ex-girlfriend felt that she was in an unsafe situation and called the
police.  Defendant remained in the car for approximately ten to fifteen
minutes, while being told seven to ten times to get out.  Defendant did
not leave until he heard the police sirens.  
¶ 6.            
When police located defendant approximately an hour later, he initially
denied being at the fireworks or having a confrontation with his
ex-girlfriend.  Defendant was behaving erratically, and he showed signs of
being intoxicated.  Defendant denied having his foot in his
ex-girlfriend’s car and testified that he had never been inside his
ex-girlfriend’s car.  He stated that he was trying to calm the child down
and closed the car door as soon as he had the child secured in his car
seat.  He admitted that he heard his ex-girlfriend tell him to get out of
the car several times.  The jury found defendant guilty of unlawful trespass. 

¶ 7.            
At sentencing, the State asked the court to order defendant to complete
DAEP as a special condition of probation.  The State pointed to the
testimony at trial and argued that the case had been fueled by the same
dynamics at play in domestic-abuse situations.  It maintained that the
only way in which to deal with the issues that led to the incident was to
address defendant’s attempts to control his ex-girlfriend and her relationship
with the parties’ child.  The State asserted that DAEP directly addressed
these types of issues and it was more suitable than any type of
anger-management program.  
¶ 8.            
The court recognized that DAEP was a unique recommendation for this type
of offense but found the State’s request warranted.  It agreed with the
State that the incident was about power and control, with the parties’ son
caught in the middle, and that the parties would have many more years of
interacting with one another.  The court found that DAEP might improve the
situation and decrease the chance that similar incidents would recur.  The
court noted that if the DAEP facilitator decided that the program would not
help defendant, or that he was not a good fit for the program, defendant’s
attorney could move to modify his probation conditions.  The court thus
sentenced defendant to one to three months, all suspended, with special
conditions of probation including the requirement that he complete DAEP.  
¶ 9.            
In December 2011, defendant filed a notice of appeal from his conviction
and sentence, as well as a request to stay the DAEP condition pending his
appeal.  See V.R.Cr.P. 38 (allowing for stay of sentence of imprisonment
or probation under certain circumstances).  Defendant initially, and
erroneously, argued that a stay was mandatory because defendant was convicted
of a nonviolent misdemeanor.  See V.R.Cr.P. 38(a) (“A sentence of
imprisonment upon conviction of a misdemeanor not involving an act of violence
against another person shall be stayed . . . pending appeal.”).  As the
court pointed out, however, defendant’s sentence was wholly probationary, and
thus, the court had discretion to decide if a stay was justified.  See
V.R.Cr.P. 38(d)(1) (“An order placing the defendant on probation may be
stayed if an appeal is taken.” (emphasis added)).[1]  
¶ 10.        
The court did not find a stay warranted.  Defendant asserted that
his argument on appeal—that the trespass statute did not apply because there
was no trespass to land—presented a close question.  If it was truly a
close question, the court explained, it might agree to a stay, but case law
strongly supported the notion that the words “any place” in the statute applied
to the inside of a vehicle.  The court thus denied the motion to
stay.  Defendant did not appeal the denial to this Court.  See
V.R.A.P. 8 (providing that where request for stay of sentence is denied in
trial court, party may ask Supreme Court to impose stay pending appeal).  
¶ 11.        
Four months later, in April 2012, defendant’s probation officer filed a
probation violation complaint alleging that defendant violated the DAEP
condition of his probation.  The probation officer averred that when
defendant attended his intake meeting to determine his eligibility for DAEP, he
refused to admit to the State’s Attorney’s information, which was a condition
of enrollment.  He thus would not be completing the DAEP condition of
probation.  The probation officer asked the court to revoke probation and
impose the underlying sentence.  
¶ 12.        
In September 2012, defendant moved to stay his sentence pending
appeal.  The court denied defendant’s request on the record at a September
2012 status conference.  In October 2012, defendant moved to stay both his
probation requirements and the violation-of-probation (VOP) proceeding pending
appeal.  Defendant also moved to modify the conditions of his probation.
 As to the latter motion, defendant asserted that because he had been
convicted of unlawful trespass after trial and did not plead guilty, he should
not have to complete DAEP.  He maintained that the DAEP condition “set him
up to fail” because he never agreed with the State’s information and
affidavit.  
¶ 13.        
The court considered defendant’s motions at the November 2012 VOP merits
hearing and denied them.  As to the motion to modify, the court rejected
defendant’s suggestion that a judge could impose DAEP as a condition of
probation only if a defendant pleaded guilty to a crime.  The court emphasized
that the trial judge had heard the evidence and concluded that the condition
was appropriate and it did not matter if defendant considered the condition
appropriate or not.  Once there was a jury verdict of guilty, the court
continued, a defendant could be expected to acknowledge the behavior and
participate in counseling.  As to the requests to stay, the court noted
that it previously denied such requests and saw no changes since that time to
warrant a stay.  Defendant did not ask this Court to review the trial
court’s stay decision under Vermont Rule of Appellate Procedure 8.  
¶ 14.        
Following a merits hearing, the court found it clear that defendant
violated the terms of his probation.  As it explained, defendant’s
probation order required him to complete DAEP, and it was undisputed that
defendant would not admit to the offense, which was the very first requirement
of that program.  Thus, he could not complete the program.  
¶ 15.        
In reaching its conclusion, the court recognized defendant’s perception
that he was not guilty and therefore could not admit his guilt. 
Nonetheless, the court explained, once a jury reached a verdict, that verdict
was what the court acted on in terms of sentencing.  The court reiterated
that the trial judge had determined after hearing the evidence at trial that
the unlawful trespass involved “power and control” issues and that DAEP was the
appropriate way in which to address these issues.  At that point, the
court continued, DAEP became obligatory in order to avoid incarceration,
regardless of defendant’s disagreement with the conviction or sentence, or
both.[2] 
Upon finding noncompliance with the DAEP condition, the court revoked
defendant’s probation and imposed the underlying sentence, although it stayed
execution of the sentence pending appeal.  Defendant appealed, and this
appeal was consolidated with defendant’s appeal from his conviction.  
¶ 16.        
We begin with defendant’s challenge to his conviction.  Defendant
moved to dismiss below for lack of a prima facie case, arguing that a car was
not a “place” within the meaning of 13 V.S.A. § 3705.  The trial court
rejected this argument and cited State v. Foster, 139 Vt. 18, 421 A.2d
1284 (1980), applying the proscription against unlawful trespass to a mobile
home, in support of its conclusion.  On appeal, defendant reiterates his
argument that a car is not a place.  He notes that the subchapter that
encompasses § 3705 is entitled “Injuries to Buildings and their
Appurtenances,” and he asserts that the statute itself discusses only land,
residences, and buildings.  Given this, defendant maintains that the
statute does not encompass vehicles.  Defendant also argues that Foster
is distinguishable because it involved a trespass to a mobile home, which is a
residence or building.  
¶ 17.        
We review de novo the meaning of the unlawful trespass statute. 
See, e.g., State v. Therrien, 2011 VT 120, ¶ 9, 191 Vt. 24, 38 A.3d 1129
(“The interpretation of a statute is a question of law that we review de
novo.”).  In interpreting this statute, we seek to implement the
Legislature’s intent, and “[t]he definitive source of legislative intent is the
statutory language, by which we are bound unless it is uncertain or unclear.”
 In re Bennington Sch., Inc., 2004 VT 6, ¶ 12, 176 Vt. 584,
845 A.2d 332 (mem.).  In conducting our analysis, “[w]e assume the
Legislature intended the plain and ordinary meaning of the language it used.”
 State v. Stell, 2007 VT 106, ¶ 12, 182 Vt. 368, 937 A.2d 649.
 
¶ 18.        
As set forth above, 13 V.S.A. § 3705(a) prohibits a person, without
legal authority or the consent of the person in lawful possession, from
entering or remaining “on any land or in any place” as to which notice against
trespass has been given.  We reject defendant’s assertion that this
language extends only to buildings and land.  By its plain terms, the
statute extends to “any place” as well as to buildings and lands.  Giving
the words “any place” their ordinary meaning, they clearly apply to the inside
of a car.  The fact that the statute provides greater penalties for
persons who enter locked buildings, residences in violation of a court order,
or dwelling houses, see id. § 3705(c) and (d), does not change this
result.  
¶ 19.        
In this regard, the statute establishes a scheme of prohibitions and
punishments that reflects an escalating sanction for increasingly egregious
trespass, with knowingly unauthorized entry into a dwelling topping the list (a
felony), followed by entry into a normally locked building other than a
residence (a one-year misdemeanor), and ending with entering or remaining “on
any land or in any place as to which notice against trespass is
given.”  Id. § 3705(a) (emphasis added). 
Application of the last provision to extend criminal trespass to the facts
presented here is in keeping with the statutory objective to protect property
from intrusion by strangers to any right of lawful possession.  To the
extent that defendant relies on the title of the statute in support of his
position, that reliance is misplaced.  “Where as here the statutory text
is clear, the title of a statute . . . cannot limit the plain meaning of the
text.”  Demore v. Kim, 538 U.S. 510, 535 (2003) (quotation
omitted).  
¶ 20.        
This interpretation is consistent with Foster, which involved a
defendant’s refusal to leave a mobile home.  Our decision there did not
depend on the mobile home’s status as a residence or building, as defendant
asserts.  To the contrary, we found any distinction between realty and
personalty immaterial.  As we explained, “[w]hether the mobile home was
realty or personalty, the language of the statute cannot be stretched to hold
that the scene was not a ‘place.’ ”  139 Vt. at 20, 421 A.2d at 1285; see
also Black’s Law Dictionary 1293 (8th ed. 2004) (defining “realty” as “[l]and
and anything growing on, attached to, or erected on it, that cannot be removed
without injury to the land,” also referred to as “real property”); id.
at 1180, 1254 (explaining that “personalty” means “[p]ersonal property as
distinguished from real property,” and further defining term “personal
property” to mean “[a]ny movable or intangible thing that is subject to
ownership and not classified as real property”).  Nothing in the statute
suggests that places like planes, trains and automobiles are to be excluded
from criminal-trespass protection.  As in Foster, common sense and
the plain language of the statute compel the conclusion that the inside of a
car is a “place” for purposes of § 3705.  We thus deny defendant’s
challenge to his conviction.  
¶ 21.        
Defendant next argues that the court abused its discretion in ordering
him to complete DAEP.  He maintains that this condition of probation was
not reasonably related to the underlying conviction because he was not
convicted of a crime of violence.  
¶ 22.        
The trial court reached a contrary conclusion, and it acted within its
discretion in doing so.  As defendant acknowledges, the court is empowered
to impose those conditions of probation that it “deems reasonably necessary to
ensure that the offender will lead a law-abiding life or to assist the offender
to do so.”  28 V.S.A. § 252(a); see also State v. Rivers, 2005 VT
65, ¶ 9, 178 Vt. 180, 878 A.2d 1070 (reiterating that “a probation
restriction must be reasonably related to protecting the public from a
recurrence of the crime that resulted in the imposition of probation, and must
serve the statutory purpose of assisting the probationer to lead a law-abiding
life”).  The court found that the crime here had been motivated by power
and control issues, and that defendant needed to address these issues to
prevent similar incidents from recurring.  The court provided reasonable
grounds for its decision, and it acted consistently with the law.  While
defendant disagrees with the court’s conclusion, he fails to show an abuse of
discretion.  See, e.g., State v. Savo, 141 Vt. 203, 208, 446 A.2d
786, 789 (1982) (Supreme Court will not set aside a discretionary ruling if
there is a reasonable basis for the lower court’s action).  
¶ 23.        
We turn next to defendant’s VOP appeal.  Defendant first challenges
the court’s denial of his motion to modify the conditions of probation. 
Defendant maintains that by ordering him to participate in DAEP, the court was
requiring him to acknowledge not only the behavior for which he was convicted,
but also behavior that may have been included in the affidavit of probable
cause, but that was not necessarily found by a jury beyond a reasonable
doubt.  Somewhat more specifically, defendant asserts that to be enrolled
in DAEP, he would have to admit “power and control” type behaviors, allegations
that were not supported by his conviction.  
¶ 24.        
To the extent that he challenges the imposition of the DAEP condition in
the first instance, we have rejected that argument above.  We note,
moreover, that defendant’s argument on appeal is not the same as raised
below.  Defendant argued to the trial court that he should not have to
participate in DAEP because he did not agree to plead guilty to unlawful
trespass.  The trial court rejected this argument and acted within its
discretion in doing so.  The trial court is authorized to suspend a sentence
on conditions of probation notwithstanding a defendant’s protestations of
innocence in the face of guilty verdict and without a defendant’s
agreement.  
¶ 25.        
That defendant maintains he is innocent neither absolves him from
probation nor makes it “impossible” for him to comply.  He may choose not
to comply and take the consequences of the violation.  An unpleasant
choice is not synonymous with no choice and, in any event, probation was
imposed as a condition to the suspension of the jail term otherwise deemed
fitting by the trial court in response to defendant’s conviction for unlawful
trespass.  Moreover, defendant failed to seek a stay from this Court
pending appeal.   
¶ 26.        
Finally, we consider defendant’s assertion that the trial court erred in
finding the probation violation.  According to defendant, he was never
specifically asked to admit the conduct for which he was convicted, so refusing
to admit could not be the basis for his exclusion from DAEP.  Determining
a probation violation presents “a mixed question of fact and law.”  State
v. Austin, 165 Vt. 389, 398, 685 A.2d 1076, 1082 (1996).  “The trial
court must first make a factual determination of what actions the probationer
took, and then make an implicit legal conclusion that certain acts constitute a
violation of the probationary terms.”  Id.  On review, we will
uphold the court’s factual findings if they are fairly and reasonably supported
by any credible evidence; we will uphold the trial court’s legal conclusions if
they are reasonably supported by its findings.  Id.  Here, the
trial court found it undisputed that defendant did not admit to the offense for
which he was found guilty and so failed to qualify for entry into DAEP. 
The court’s decision is supported by the evidence.  
¶ 27.        
At the merits hearing, the DAEP coordinator testified that to be
accepted into DAEP, individuals must, at minimum, be accountable for their
criminal convictions.  The coordinator stated that when she met with
defendant, defendant told her that he had done nothing wrong.  The
coordinator reiterated that, to be accepted into the program, defendant would
have to at least admit to the underlying offense.  Defendant again stated
that he had done nothing wrong.  The coordinator then informed defendant
that she could not accept him into the program, at which point defendant perked
up, and replied, “okay.”  The probation officer similarly testified that
he had been informed by the DAEP coordinator that defendant was not accepted
into the program because defendant believed that he had done nothing wrong and
that he was innocent.  The probation officer informed defendant that
completion of DAEP was a condition of his probation, and that a
probation-violation complaint would be filed if defendant failed to satisfy
that condition.  
¶ 28.        
Having insisted on his total innocence, there was no need to more
specifically review with defendant the particulars of the State’s information
against him.  Defendant’s position was quite clear: he was guilty of
“nothing wrong.”  Assuming for argument, as defendant contends here, if
not below, that the coordinator did not differentiate between the broader
affidavit of probable cause and the more specific charge addressed by the jury,
defendant admitted to none of it and the coordinator, the probation officer
and, in turn, the trial court were correct in their assessment that defendant
refused to admit to his underlying unlawful trespass.   As the DAEP
coordinator explained in court, if a person refused to admit his or her
criminal conduct, DAEP could not help that person and, as essentially explained
by the court, once the jury pronounces guilt on the facts charged, it is not
unreasonable for the court to require acknowledgment of those facts by the
defendant as a condition of probation.  The evidence amply supports the
court’s conclusion that defendant violated probation by failing to complete
DAEP as ordered.  
Affirmed.  
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]  In
considering defendant’s request, the court looked to the Reporter’s Notes
accompanying the rule, which recognized that a delay in the commencement of
probation might seriously inhibit the rehabilitative purpose of
probation.  Reporter’s Notes, V.R.Cr.P. 38; see also Federal Advisory
Committee’s Notes to 1972 Amendment of Federal Rule 38(a)(4), 56 F.R.D. 143,
161-62 (1972) (explaining that rule was changed to give trial court discretion
in considering stay in probation cases because requiring probation during
appeal period may serve objectives of both community protection and defendant
rehabilitation, and noting that American Bar Association Project on Standards
for Criminal Justice opines that prompt imposition of sentence aids in
defendants’ rehabilitation).


[2] 
We note that a defendant could seek a stay of sentence or probation to avoid
having to admit guilt pending appeal.  As noted, defendant here did seek a
stay but the trial court denied his request.  Defendant could have, but
did not, seek a stay from this Court.  



