State v. Fanger, 94-262

Decision Date30 June 1995
Docket NumberNo. 94-262,94-262
Citation665 A.2d 36,164 Vt. 48
PartiesSTATE of Vermont v. Bruno FANGER.
CourtVermont Supreme Court

Christopher C. Moll, Windham County Deputy State's Attorney, Brattleboro, for plaintiff-appellant.

David G. Reid, Brattleboro, for defendant-appellee.

Before ALLEN, C.J., GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

The State of Vermont appeals the Windham District Court's dismissal of one count of unlawful trespass in violation of 13 V.S.A. § 3705(d) against defendant, Bruno Fanger. The State argues that the trial court erred by concluding that the State failed to make a prima facie case. We reverse.

Defendant is the manager and chief caretaker of eight buildings and 350 acres of property located in Jamaica, Vermont. The owners of the property reside out-of-state, and in 1993 they were looking for a housekeeper to live on the property. Defendant recommended Gary and Jessica Clay for the job, who were hired on a trial basis and permitted to reside temporarily in the building, which also housed defendant's office. The Clays did not perform their job satisfactorily, and defendant asked them to leave the property, although he allowed them to remain until they could find alternative accommodations.

Shortly after defendant asked the Clays to leave, defendant informed Mrs. Clay by telephone that she and her husband had to vacate the apartment that day. Defendant then contacted the state police to inform them that he had a problem with a tenant and that he needed to go into the tenant's apartment. The State did not present any specific evidence regarding the content of this conversation, other than that the police officer "advised the Defendant of the consequences if he did not abide by the laws." After this conversation with the state police, defendant went to the building where the Clays resided, and again told Mrs. Clay that she and her husband had to leave the apartment that day. When Mrs. Clay responded that defendant should discuss the issue with her husband, defendant forced his way into the apartment despite Mrs. Clay's efforts to prevent him from doing so.

Defendant moved to dismiss the information, alleging the inability of the State to establish a prima facie case. See V.R.Cr.P. 12(d). In support of the motion, defendant filed an affidavit describing his version of what occurred when he entered the apartment the Clays occupied. A hearing was held, and Mrs. Clay testified on behalf of the State. The court had before it her testimony and affidavit, and the affidavits of the investigating officer 1 and the defendant. See id. 12(d)(2) (motion to be decided on basis of "affidavits, depositions, sworn oral testimony, or other admissible evidence"). The court ruled that the State failed to show that defendant knew he was not privileged to enter the apartment, an essential element of the crime, based on defendant's explanation that he entered to turn on the heat in other apartments and that he believed the Clays' tenancy had ended.

The crime with which defendant is charged is defined as follows: "A person who enters a dwelling house, whether or not a person is actually present, knowing that he is not licensed or privileged to do so shall be imprisoned for not more than three years or fined not more than $2,000.00, or both." 13 V.S.A. § 3705(d). There is no question that defendant entered a dwelling house. The question before us relates solely to the knowledge element.

The standard for addressing a motion to dismiss for lack of a prima facie case is the same as the standard for a motion for judgment of acquittal. State v. Norton, 147 Vt. 223, 229, 514 A.2d 1053, 1058 (1986) (standard in Rule 29 for motion for acquittal applies to motion to dismiss for lack of prima facie case). The court must determine "whether, taking the evidence in the light most favorable to the state and excluding modifying evidence, the state has [produced] evidence fairly and reasonably tending to show the defendant guilty beyond a reasonable doubt." Reporter's Notes, V.R.Cr.P. 29; see V.R.Cr.P. 12(d)(2) (on motion to dismiss for lack of prima facie case, State must show "it has substantial, admissible evidence as to the elements of the offense challenged by the defendant's motion"). Thus, the issue before the trial court, and before this Court on appeal, is whether sufficient evidence was disclosed to prove beyond a reasonable doubt that defendant entered the Clays' residence knowing that he was not licensed or privileged to do so. 2

Normally, a prima-facie-case ruling is made solely on evidence offered by the State. The rule does, however, authorize the defendant to "cross-examine witnesses and introduce affidavits or further evidence in his own behalf." V.R.Cr.P. 12(d)(2). In view of this authorization, we believe the trial court must make its ruling based on all the evidence before it, whether produced by the State or the defendant. Cf. Ross v. Sirica, 380 F.2d 557, 559 (D.C.Cir.1967) (under comparable Federal Rule of Criminal Procedure 5(c) (now 5.1), probable cause determination is made on all evidence, including evidence adduced by accused); Schwader v. District Court, 172 Colo. 474, 474 P.2d 607, 609-10 (1970) (same under Colorado Criminal Rule 5(c)(3)).

Vermont's criminal trespass statute is based on the Model Penal Code adopted by the American Law Institute in 1962. See State v. Kreth, 150 Vt. 406, 409, 553 A.2d 554, 556 (1988). The primary similarity between the two statutes is that a trespass is committed only by a person "knowing that he is not licensed or privileged to do so." Compare Model Penal Code § 221.2(1) (1962) (emphasis supplied) with 13 V.S.A. § 3705(d). Comment 2(a) to § 221.2 states that the knowledge requirement excludes from criminal liability both the inadvertent trespasser and the trespasser who believes that he has received express or implied permission to enter or remain on the premises. The knowledge requirement establishes a subjective standard. See State v. Sargent, 156 Vt. 463, 466-67, 594 A.2d 401, 403 (1991); Model Penal Code § 2.02(b)(i) & Cmt. 2 (1980). It is not sufficient for the State to show that defendant should have known he was not licensed or privileged to enter the dwelling. See Sargent, 156 Vt. at 465-66, 594 A.2d at 402. This interpretation of the "knowing" requirement is supported by other jurisdictions that have criminal trespass statutes containing the same relevant language as Vermont's. See State v. Dansinger, 521 A.2d 685, 689 (Me.1987) (liability for criminal trespass necessarily involves state of mind of defendants); State v. Santiago, 218 N.J.Super. 427, 527 A.2d 963, 965 (1986) (no criminal liability for trespass where defendant perceived that she was privileged to be on premises); Commonwealth v. Sherlock, 326 Pa.Super. 103, 473 A.2d 629, 632 (1984) (no criminal liability for trespass where defendant could have believed that he was licensed to be on premises).

We recognize that "[i]ntent 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, 554 A.2d 253, 255 (1988). Nevertheless, we agree with the trial court that much of the State's claim for the adequacy of the evidence cannot be sustained. For example, the State points to defendant's conversation with the state policeman as evidence that defendant knew that his actions were unlawful. The officer's affidavit, however, states only that he "advised the Defendant of the consequences if he did not abide by the laws" without providing any details of the conversation. It is impossible to determine what advice, if any, the officer gave defendant about the requirements of the law or about actions defendant might take. Thus, we agree that this evidence alone does not meet the State's burden.

Nor are we convinced that we should find the intent element because defendant is improperly attempting to rely on his ignorance of the law. See State v. Woods, 107 Vt. 354, 356-57, ...

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    ...the evidence before it, regardless of its source. See United States v. Beck, 615 F.2d 441, 448 (7th Cir.1980); cf. State v. Fanger, 164 Vt. 48, 52, 665 A.2d 36, 37-38 (1995) (in determining motion to dismiss for lack of a prima facie case, court must consider all evidence including cross-ex......
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    ...915 A.2d 767 (noting that aggravated assault statute was amended to adopt Model Penal Code's approach to mens rea); State v. Fanger, 164 Vt. 48, 52–53, 665 A.2d 36, 38 (1995) (noting that criminal trespass statute was based on Model Penal Code and applying the Code's standard for knowledge ......
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    ...is not an excuse," meaning, the law presumes all individuals know the law and are responsible for noncompliance. See State v. Fanger, 164 Vt. 48, 53, 665 A.2d 36, 38 (1995) (affirming legal principle that ignorance of law is not excuse); State v. Woods, 107 Vt. 354, 356–57, 179 A. 1, 2 (193......
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  • CRIMINAL TRESPASS AND COMPUTER CRIME.
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    ...supra note 22, [section] 21.2(c). (296.) LAFAVE, supra note 22, [section] 21.2(c). (297.) Id. [section] 21.2; see also State v. Fanger, 665 A.2d 36, 38 (Vt. (298.) See supra Part III.D. (299.) Cf. Fanger, 665 A.2d at 37-38 (finding property manager did know his entry was unlawful based upon......

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