State v. Christman, 212-75

• Decision Date: 01 February 1977
• Docket Number: No. 212-75,212-75
• Citation: 135 Vt. 59,370 A.2d 624
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Gail CHRISTMAN.

Page 624

370 A.2d 624

135 Vt. 59

STATE of Vermont v. Gail CHRISTMAN.

No. 212-75.

Supreme Court of Vermont.

Feb. 1, 1977.

Dale O. Gray, Caledonia County State's Atty., and David N. Weinstein, Deputy State's Atty., St. Johnsbury, for plaintiff.

James L. Morse, Defender Gen., and Robert M. Paolini, Deputy Defender Gen., Montpelier, for defendant.

Before DALEY, LARROW, BILLINGS and HILL, JJ., and SHANGRAW (C. J. Ret.), Specially Assigned.

LARROW, Justice.

Appellant was convicted below, under an information amended during trial at the close of the State's case, of violating 13 V.S.A. § 3705(c), relating to unlawful trespass, by entering a residence knowing she was not licensed or privileged to do so. She appeals that conviction, claiming that the amendment, made at the suggestion of the trial judge, severely prejudiced her constitutional right to know the precise charge against her and deprived her of opportunity to intelligently prepare a defense. She seeks reversal of the judgment of guilty, claiming that the charge she was prepared to defend against was substantively changed just before presentation of her defense, depriving her of the judgment of acquittal to which she was entitled.

The factual background of the charged offense is relatively simple. On June 18, 1976, for reasons variously testified to, the appellant admittedly broke down the locked door of the third floor apartment of the complaining witness, one Ainsworth, at 20 Tremont Street in the Village of St. Johnsbury.

The original information charged that she 'did then and there enter a residence, to wit, 20 Tremont Street, knowing she was not licensed or privileged to do so.' The amendment, made when the trial judge indicated he considered this insufficient to cover the offense of breaking an inside apartment door after entering the common areas of the apartment house legally, added, after the words '20 Tremont Street' the new words 'the Deborah Ainsworth apartment located on the third floor thereof which apartment was entered by a wooden doorway.' The amendment was allowed, over appellant's objection, to conform to the evidence, and there is no question raised here about such conformity.

Chapter I, Art. 10 of the Vermont Constitution and the Sixth Amendment of the U.S. Constitution confer upon a criminal respondent, in almost identical words, the right to be informed of the cause and nature of the accusation against him. We have examined the nature of that right in many criminal cases dealing with the sufficiency of an information or indictment, and the question of whether an attempted amendment is a prohibited one of 'substance' or a permitted one of 'form.' The constitutional test to which conformity is required has been variously stated, but the 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. State v. Margie, 119 Vt. 137, 120 A.2d 807 (1956); State v. Woodmansee, 124 Vt. 387, 205 A.2d 407 (1964). As Woodmansee points out, this is not a subjective inquiry as to what the accused actually understood, but a scrutiny of the charge, as made, to determine what offense is reasonably indicated by its language. Since the decisions in the cited cases, however, we have provided for even greater liberality of amendment, so that many amendments formerly barred as being 'of substance' are now governed by V.R.Cr.P. 7(d), and permitted 'if no additional or different offense is charged and is substantial rights of the defendant are not prejudiced.' Cf. Reporter's Notes, V.R.Cr.P. 7(d).

Both express and implicit in the appellant's argument here is...