State v. Kreth, 86-002

• Decision Date: 16 September 1988
• Docket Number: No. 86-002,86-002
• Citation: 150 Vt. 406,553 A.2d 554
• Parties: STATE of Vermont v. Ronald KRETH.
• Court: Vermont Supreme Court

Page 554

553 A.2d 554

150 Vt. 406

STATE of Vermont v. Ronald KRETH.

No. 86-002.

Supreme Court of Vermont.

Sept. 16, 1988.

Marc D. Brierre, Rutland County Deputy State's Atty., Rutland, for plaintiff-appellee.

Walter M. Morris, Jr., Defender Gen., and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.

Before ALLEN, C.J., PECK, DOOLEY and MAHADY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

DOOLEY, Justice.

The defendant in this case was convicted of violation of our criminal trespass law, 13 V.S.A. § 3705(d). The essential facts are that defendant, after drinking heavily, drove off the road during a severe winter storm. He entered an empty private dwelling house, apparently by breaking in the back door, and was found by one of the owners of the house the next morning. After a jury trial, defendant was convicted of criminal trespass. In this Court, he makes a number of arguments about the charging information, the jury instructions and the adequacy of the evidence. We agree that the information is defective and reverse without reaching defendant's other claims.

The statute under which defendant was charged provides:

(d) 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). The information in the case charged:

That Ronald August Kreth of Danby at North Clarendon in this county and territorial unit on the 4th or 5th day of March, 1985 did then and there enter a dwelling house knowing he was not privileged to do so, to wit, the Nancy J. Meszaros and Mark A. Meszaros residence.

With one exception, the information tracked the statute. The exception is that it charged defendant with entering while knowing that he was not privileged to do so, but failed to charge--as set out in the statute--that he knew he was not licensed to enter. Because of this difference, defendant argues that the information failed to charge him with a crime and any conviction based on the information must fail. Defendant raises this argument for the first time in this Court.

The requirements on the content of an information are set out in Criminal Rule 7(b). Under the rule, "the information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged." V.R.Cr.P. 7(b). The Reporter's Notes indicate that the rule is intended in part to simplify criminal pleading requirements but it is still necessary that the information "contain the elements of the offense." Reporter's Notes, V.R.Cr.P. 7. Indeed, this requirement remains to satisfy the requirements of Chapter I, Article 10 of the Vermont Constitution and the Sixth Amendment to the United States Constitution that the defendant be informed of the cause and nature of the accusation against him. See State v. Phillips, 142 Vt. 283, 288, 455 A.2d 325, 328 (1982).

An information that omits an essential element of the crime charged is defective and cannot serve as the basis of a conviction. State v. Bradley, 145 Vt. 492, 495, 494 A.2d 129, 132 (1985). In Bradley, the defendant was sentenced for driving with her license suspended under a provision requiring a minimum jail term. The provision applied only if defendant's license had been suspended for certain specified reasons. The information charging defendant did not specify the grounds under which defendant's license had been suspended. The Court found that the information was defective and could not serve as a basis for imposition of sentence under the mandatory jail time provision. Because the challenge was to the sufficiency of the information, the Court held that it could be raised for the first time on appeal. Bradley, 145 Vt. at 494, 494 A.2d at 131; see also V.R.Cr.P. 12(b)(2) (defenses based on defects in the information must be raised prior to trial unless they show lack of jurisdiction or failure to charge an offense); Phillips, 142 Vt. at 290, 455 A.2d at 329.

Bradley governs in this case unless there is something about this information that saves it. The State argues that there is a ground to distinguish this case--that is, that the terms "licensed" and "privileged" are practically synonymous so that "stating both licensed and privileged in the body of an information serves no valid or rational purpose." There is some force to the State's argument. Black's Law Dictionary defines "license" in the context of entry on real property as a "personal or revocable privilege to perform an act or series of acts on the land of another." Black's Law Dictionary 830 (5th ed. 1979). A "licensee" is defined as "[a] person who has a privilege to enter upon land arising from the permission or consent, express or implied, of the possessor of land...." Id. A "privilege" in tort law is a rule "of law by which particular circumstances justify conduct which otherwise would be tortious...." Id. at 1078.

The Restatement of Torts follows similar definitions. The definition of "privilege" notes that a privilege can be based on "the consent of the other affected by the actor's conduct" or on another overriding interest. Restatement (Second) of Torts § 10(2) (1965). In the context of trespass to land, the Restatement equates license with present or past consent. See, e.g., Restatement (Second) of Torts § 167 comment b, §§ 176-184 (1965). The import of the Restatement is that a license is a form of privilege which is based on consent. Thus, when the State argues that the omission of the words "licensed or" from the information is harmless, it has good grounds to claim that the inclusion of the word "privileged" is sufficient to denote both "privileged" and "licensed" and complies with the command of Bradley that the essential elements of the offense be stated in the information.

As alluring as the State's argument is, we believe there are significant reasons to reject it. We start with a reluctance to find that a part of a statute is surplusage, a necessary finding to accept the State's argument. See State v. Stevens, 137 Vt. 473, 481, 408 A.2d 622, 627 (1979); In re Paquette, 112 Vt. 441, 446, 27 A.2d 129, 132 (1942). Thus, "[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous...." 2A N. Singer, Statutes and Statutory Construction § 46.06, at 104 (C. Sands 4th ed. 1984) (footnote omitted). It is only when "words seem unnecessary, or have no meaning within the scheme of the statute, or seem to have been inadvertently used, [that] they will be treated as surplusage and disregarded in order to effectuate the Legislative intent." Stevens, 137 Vt. at 481-82, 408 A.2d at 627.

Our reluctance to accept the State's argument is heightened because there exists indicia of legislative intent to the contrary. The source of the phrase in issue is § 221.2(1) of the Model Penal Code adopted by the American Law Institute in 1962. While its provision on criminal trespass is somewhat different than ours, the essential similarity is that the offense defined in § 221.2 is committed only if the trespass is done by a person "knowing that he is not licensed or privileged to do so." Model Penal Code § 221.2(1) (1980). A similar phrase is found in the Model Penal Code's burglary definition. See id. at § 221.1(1).

The comment to § 221.2 suggests that the authors intentionally included the dual elements of license and privilege. The comment states that "[t]he knowledge requirement is designed primarily to exclude from criminal liability both the inadvertent trespasser and the trespasser who believes that he has received an express or implied permission to enter or remain." See id. at § 221.2 comment 2(a). Presumably, the latter situation involves licensed entry while the former involves privileged entry. The comment to the burglary section draws a similar distinction. See id. at § 221.1 comment 3(a) (applies to cases where an employment or ownership interest authorizes entry, or to other circumstances where privilege can be inferred).

The Model Penal Code sections, or variations on them, have been adopted in a number of states. While the decisions are not entirely consistent, they generally support the interpretation that "licensed" refers to a consensual entry while "privileged" refers to a nonconsensual entry. Thus, in Commonwealth v. Starkes, 268 Pa.Super. 108, 112-13, 407 A.2d 853, 855 (1979), the court faced a charge that defendant committed a burglary and analyzed the issue as one of possible privilege or license. Cf. People v. Crowell, 122 Misc.2d 133, 470 N.Y.S.2d 306 (Oswego County Ct.1983) (the distinction between license and privilege may determine when the right to be on the premises is terminated); People v. Czerminski, 94 A.D.2d 957, 464 N.Y.S.2d 83 (1983) (privilege to be on premises expired). In State v. Thaxton, 120 N.H. 526, 528, 419 A.2d 392, 393 (1980), the court used the common law to define one as privileged to enter "if he may naturally be expected to be on the premises often and in the normal course of his duties or habits." See also Commonwealth v. Corbin, 300 Pa.Super. 218, 222-24, 446 A.2d 308, 311 (1982) (adopting Thaxton definition). Finally, in State v. Thibeault, 402 A.2d 445, 448 (Me.1979), a case involving an entry with consent, the court found only the language on license to be relevant to determine whether the defendant committed a burglary.

The application of the Model Penal Code language in those states that have adopted it in relevant part, as well as the comments to the code language, suggest strongly that the wording was used to draw a common sense line between consensual and lawful nonconsensual entries on land. For the foregoing reasons, we cannot say that the element of knowledge of lack of license is surplusage in the statute in that its inclusion seems to be neither...