State v. Hanson

• Decision Date: 22 April 1982
• Docket Number: No. 10-81,10-81
• Citation: 446 A.2d 372,141 Vt. 228
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Kent A. HANSON.

Page 372

446 A.2d 372

141 Vt. 228

STATE of Vermont v. Kent A. HANSON.

No. 10-81.

Supreme Court of Vermont.

April 22, 1982.

John J. Easton, Jr., Atty. Gen., Edwin L. Hobson, Jr., Asst. Atty. Gen., and Sienna Walton and Christopher Micciche, Law Clerks, on the brief, Montpelier, for plaintiff.

Andrew B. Crane, Defender General, William A. Nelson, Appellate Defender, and Ellen Coogan, Law Clerk, on the brief, Montpelier, for defendant.

Before BARNEY, C. J., BILLINGS, HILL and UNDERWOOD, JJ., and DALEY, J. (Ret.), Specially Assigned.

BARNEY, Chief Justice.

The hapless defendant and a companion came to rest in a Walden snowbank in the early morning hours of March 13, 1980, after a journey which began in Rutland the night before and took them between times to Burlington, Waterbury, Stowe and Montpelier in a succession of vehicles driven at speeds of up to 110 miles per hour. The defendant was subsequently charged with grand larceny of the car he was apprehended in, and with breaking and entering in the nighttime with intent to commit larceny. After trial by jury he was convicted of both crimes and now appeals that conviction on two grounds: error in the jury instruction and insufficient evidence to convict.

The facts of this case flavor the issues. The defendant and his friend, suspecting that the police were looking for them, fled Rutland in a pick-up truck they had taken without consent. They headed for Waterbury, where the defendant sought to pick up some medication. The truck was low on gas so they stopped at a service station, filled the tank, and left without paying. Still, even with gas, the truck was unsatisfactory. It drove too slowly and had no radio.

The pair stopped at a Chevrolet dealership in Waterbury to get another vehicle. The first car they took after admitting themselves to the garage turned out to have a faulty transmission, and after driving a short distance they returned it. The second car they attempted to take was in excellent condition, but somehow, after starting the engine, they managed to lock both doors with the keys inside and the motor running. Finally a third car was chosen, its keys were located, and license plates were taken from the first car and put in place. The two then headed for Montpelier, the defendant driving the car and his friend following in the truck, which they planned to abandon elsewhere.

This third car too was low on gas, so once again they stopped at a service station, filled up, and left without paying. This time the attendant called the police, who arrived to investigate.

Meanwhile the defendant and his friend had abandoned the truck on a back road near Montpelier, and, thinking they were in the clear, continued on. As it happened however, the road circled back toward Montpelier and the unfortunate pair came out near the same service station they had just visited. Seeing the police, the defendant made a U-turn and the chase began, ending abruptly when defendant's car hit a patch of ice, catapulting it into the snowbank.

The first question raised on appeal is whether the trial court was obligated to instruct the jury that it could find the defendant guilty of the unlawful taking of tangible property, 13 V.S.A. § 3833, as a lesser included offense of 13 V.S.A. § 2501, grand larceny.

Our law in this area has been clearly spelled out: in order for a defendant to be entitled to jury instruction on a lesser offense than that for which he is charged, the elements of the lesser offense must necessarily be included within the greater offense. State v. Bourn, 139 Vt. 14, 15, 421 A.2d 1281, 1281 (1980); State v. Nicasio, 136 Vt. 162, 164, 385 A.2d 1096, 1097 (1978). What remains in any specific case is an examination of each offense to determine if the requisite identity of elements exists.

Our grand larceny statute, 13 V.S.A. § 2501, provides as follows:

A person who steals from the actual or constructive possession of another, other than from his person, money, goods, [or] chattels ... shall be imprisoned not more than ten years or fined not more than $500.00, or both, if the money or other property stolen exceeds $100.00 in value.

Stealing has been defined at common law, and identified in our case law, as:

[T]he taking and removal, by trespass, of personal property, which the trespasser knows to belong to another, with the felonious intent to deprive him of his ownership therein.

State v. Grant, 135 Vt. 222, 224, 373 A.2d 847, 849-50 (1977); State v. Levy, 113 Vt. 459, 461, 35 A.2d 853, 854 (1944). This larcenous intent has in turn been further defined in Vermont as an intent to take and keep property of another wrongfully, State v. Reed, 127 Vt. 532, 538, 253 A.2d 227, 231 (1969), so that the trespasser may appropriate it for his own purposes. Thus, larceny was not committed here unless the defendant intended to permanently separate the owner from his property, or at least deliberately act so as to make it unlikely that the owner and his property would be reunited. 3 Wharton's Criminal Law § 363, at 333-34 (1980).

By contrast, 13 V.S.A. § 3833, unlawful taking of tangible personal...