State v. Brennan

• Decision Date: 01 June 2001
• Docket Number: No. 00-050.,00-050.
• Citation: 775 A.2d 919
• Parties: STATE of Vermont v. Robert J. BRENNAN.
• Court: Vermont Supreme Court

775 A.2d 919

STATE of Vermont v. Robert J. BRENNAN.

No. 00-050.

Supreme Court of Vermont.

June 1, 2001.

William D. Wright, Bennington County State's Attorney, and Brian K. Marthage, Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

Robert Appel, Defender General, Anna Saxman, Appellate Attorney, and Seth Carey, Law Clerk (on the Brief), Montpelier, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

JOHNSON, J.

Defendant Robert Brennan appeals from a conditional guilty plea to the charge of 13 V.S.A. § 2503, larceny from the person. The district court granted the State's motion to amend the initial misdemeanor charge of 13 V.S.A. § 2502, petit larceny to a felony charge of larceny from the person. Defendant argues that larceny from the person requires that the property stolen must literally be attached to or touching the owner when stolen in order to satisfy the statute. We disagree that the items must be directly touching the victim but find that the evidence does not support the heightened charge. We reverse.

On September 9, 1999 at approximately 10:50 a.m., Priscilla Nicholson, accompanied by a friend, picked up defendant at the on-ramp to Route 7 in Manchester, Vermont. Defendant sat in the back seat of the vehicle near some of Nicholson's personal belongings, including her purse. When Nicholson reached Bennington, Vermont, she dropped defendant off and continued to her destination. Soon after, she realized her purse had been opened and eighty dollars had been stolen. She contacted the police, giving a physical description of defendant. She provided other information defendant had volunteered during the ride, such as his name, address, and place of work. Later that afternoon, defendant was taken into custody for questioning. He admitted riding in Nicholson's car and was cited for petit larceny, defined as the theft of goods or property worth less than $500.00. 13 V.S.A. § 2502.

On October 6, 1999, the state's attorney moved to amend the information to a violation of 13 V.S.A. § 2503, larceny from the person, a felony. Larceny from the person is defined as stealing or attempting to steal "from the person and custody of another." 13 V.S.A. § 2503. Defendant moved to dismiss the amended information, but the court granted the amendment to the information on October 29, 1999. The court held that the statute was intended to give added protection against "thefts that presented a high risk of actual confrontation" and to "cover thefts from the immediate presence and control of an owner." The court relied on another district court case, State v. Shatney, 890-6-98 WmCr, in which, under similar circumstances, that court held larceny from the person did not require "a taking from the very person or body of the victim." Defendant was sentenced to one to three years imprisonment, all suspended and eighty dollars restitution. He entered the conditional plea agreement, retaining his right to appeal the court's decision and order. His appeal presents a case of first impression in Vermont.

At issue is the meaning of "from the person and custody of another." 13 V.S.A. § 2503. Defendant argues on appeal that § 2503 requires that the property taken must be attached to or on the owner's body at the time of theft. Defendant reasons that since Nicholson's purse was in the back seat of the vehicle and not directly touching her, the property was not literally taken "from the person." Thus, defendant argues, the physical contact requirement of the statute was not met. Defendant supports his claim by contrasting § 2503 with similar sections of the Vermont criminal statutes, such as 13 V.S.A. § 608, assault and robbery. Unlike § 2503, 13 V.S.A. § 608 specifically punishes assaultive theft that occurs either "from his person or in his presence." Had the legislature intended larceny from the person to apply to property in the immediate presence of the person, defendant contends it would have expressly used the language found in § 608; because the language "in his presence" is absent from § 2503, the crime should not be interpreted to include it. Defendant also argues that his interpretation of § 2503 is consistent with common law because the statute was originally enacted to punish pickpockets, who necessarily have direct contact with the property owner's person to accomplish the theft. Finally, defendant claims that if § 2503 is read broadly, i.e., to include the concept of "in his presence," then the trial court has created a new crime, namely "larceny from the person or presence of another," which violates defendant's due process rights.

In response, the State contends that the phrase "from the person" has been used at common law to describe the theft of objects from the immediate presence of the owner as well as literally attached to the owner. The State claims that because Nicholson kept her purse sufficiently close to her body and under her immediate control, the statute is satisfied; therefore, the charge of larceny from the person is appropriate in spite of the fact that the purse was located in the rear seat of her car. The State also argues that the history of the statute demonstrates a legislative intent to construe § 2503 broadly, to include "in his presence." The State claims that evidence of this intent is based on the addition of the phrase "and custody of another" to the statute in 1880, and the additional language emphasizes that the offense is comprised of two elements: 1) the taking of property from an individual's person; and 2) the taking of property from an individual's custody. Thus, the State concludes that if the statute is interpreted narrowly, i.e., to exclude the concept of "in his presence," then the phrase "and custody" will be rendered meaningless, which is contrary to the intent of the legislature.

In construing a statute, "our principal goal is to effectuate the intent of the Legislature." Tarrant v. Department of Taxes, 169 Vt. 189, 197, 733 A.2d 733, 739 (1999). In determining legislative intent, we begin with the plain meaning of the statutory language. If legislative intent is clear from the language, we enforce the statute "according to its terms without resorting to statutory construction." Id. Furthermore, we "presume that all language in a statute was drafted advisedly, and that the plain ordinary meaning of the language used was intended." Committee to Save Bishop's House v. Medical Ctr. Hosp. of Vermont, 137 Vt. 142, 153, 400 A.2d 1015, 1021 (1979) (citations omitted). We must not allow a significant part of a statute to be rendered surplusage or irrelevant. See State v. Yorkey, 163 Vt. 355, 358, 657 A.2d 1079, 1081 (1995).

As Blackstone recorded in 1771, the origin of larceny from the person can be traced to the Roman and Athenian legal systems, where "saccularii," or cutpurses, were punished more severely than ordinary thieves. 4 W. Blackstone, Commentaries 241 (4th ed. 1771). Following these ancient law traditions, the English Statutes at Large incorporated specifically enhanced penalties for similar acts. Blackstone, supra; see 8 Eliz. c. 4 § 2 (1565) (removing benefit of clergy for pickpurses and cut purses convicted of "felonious taking of any money, or goods, or chattels, from the person of any other, privily without his knowledge"). The penalties were more severe than larceny "owing to the ease with which such offenses are committed, and the difficulty in guarding against them." Blackstone, supra. Thus, the offense was a compound crime, made up of the simple theft, but aggravated by an invasion of one's person. Id. at 229.

In contrast to the private stealing done by pickpockets, Blackstone distinguished another form of larceny from the person: robbery. It is characterized by "open and violent assault" on a person where property is stolen through fear and an involuntary dispossession. Id. at 241. Under this form of larceny from the person, the property need only be in the presence of its owner and not literally attached to the owner's body. Id. at 242; see also 2 W. LaFave & A. Scott, Substantive Criminal Law § 8.11(c), at 442 n.28 (2d ed.1986).

In Vermont, the first statute addressing larceny from the person was enacted in 1861. The wording of the statute is consistent with the common law understanding noted by Blackstone and appears to differ little from the traditional anti-pick-pocketing statutes. Its original form stated that the crime occurred "[i]f any person shall feloniously steal from the person of another, any money, or other property." 1861, No. 19, § 1 (emphasis added). It provided for a severe sentence of up to ten years imprisonment and/or a fine not in excess of one thousand dollars.

In 1862, the larceny statutes were substantially revised. According to the General Statutes of Vermont, larceny applied to "[e]very person who shall commit the offence of larceny, by stealing, of the property of another, whether from his actual or constructive possession." 1862 G.S. ch. 113, § 10 (emphasis added). It appears that this enactment was meant to synthesize various larceny statutes including larceny, 1850 C.S. ch. 104, § 8, larceny from the person, 1861, No. 19, § 1, larceny of specific materials, 1864, No. 26, § 1, and larceny resulting from a trespass, 1865, No. 25, § 1.¹ Larceny from the person, as a specific crime, does not appear in the General Statutes. The revision does, however, include the separate crime of attempt of larceny from the person. This statute punishes "[e]very person who shall attempt to commit the offence of larceny by feloniously stealing from the person of another any money or other property, then about his person and in his actual custody." 1862 G.S. ch. 113, § 11 (emphasis added). Although only a crime of attempt, the additional language, on its face, indicates an expansion of the crime. In contrast to the phrase "from the person" (from the 1861 statute), the modifier "about his...