State v. Neale

• Citation: 145 Vt. 423,491 A.2d 1025
• Decision Date: 01 March 1985
• Docket Number: No. 82-222,82-222
• Parties: STATE of Vermont v. Michael J. NEALE.
• Court: United States State Supreme Court of Vermont

Page 1025

491 A.2d 1025

145 Vt. 423

STATE of Vermont v. Michael J. NEALE.

No. 82-222.

Supreme Court of Vermont.

March 1, 1985.

John J. Easton, Jr., Atty. Gen., and Robert V. Simpson, Jr., Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Nancy E. Kaufman, Montpelier, for defendant-appellant.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

HILL, Justice.

The defendant appeals his conviction for knowingly and unlawfully cultivating a regulated drug in violation of 18 V.S.A. § 4224(g). We affirm the conviction but remand the case for resentencing.

The pertinent facts are as follows. In the early evening of August 21, 1981, Orange County Sheriff Gerald Eldred was notified by Mark Durkee, a local farmer, that marijuana was growing in a garden located in a field used by Durkee to pasture his cows. The land on which the pasture and garden were located was owned by Durkee's father-in-law, wife and son. The defendant used this space for his garden with the owners' permission. The defendant lived in a house, located across the road from the garden, which he also rented from Durkee's father-in-law, wife and son.

About an hour after the conversation with Durkee, Sheriff Eldred arrived at Durkee's barn with some garbage bags to be used as receptacles for the marijuana. Durkee led the sheriff through the pasture and up a hill to the garden, which was approximately 60 feet long and 25 to 40 feet wide. The garden, which was 400 to 600 feet away from the road, was surrounded by a four-strand barbed wire fence. Marijuana plants were visible from at least two sides of the garden, although none were visible from the side of the garden facing the road. Durkee removed one or more fence posts and the two men entered the garden. The sheriff pulled up nineteen marijuana plants that were growing among some rows of corn, and put the plants in the garbage bags. He then walked across the road to the defendant's home and gave the defendant a citation for possession of marijuana. The defendant was later convicted of illegally cultivating marijuana. 18 V.S.A. § 4224(g).

I.

The defendant contends that under the Fourth Amendment to the United States Constitution Sheriff Eldred should have obtained a search warrant before seizing the marijuana. Since the sheriff did not obtain a warrant, the defendant argues that the trial court erred in denying his motion to suppress the marijuana and the laboratory analysis of the plants.

The Fourth Amendment to the federal Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend IV.

The United States Supreme Court recently determined the applicability of the Fourth Amendment to fact patterns similar to the one at bar. In Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), police officers entered onto the lands of the defendants without warrants and found marijuana growing in secluded fields. One of the fields was surrounded on four sides by woods, fences and embankments and was located over a mile from the road leading to the property. The entrance to the property had a locked gate, and "no trespassing" signs were posted at regular intervals. The other marijuana field was fenced in with chicken wire and was located in a secluded area in the woods; "no trespassing" signs were posted on the property.

The Supreme Court held that the police officers' warrantless searches of these fields were not improper under the Fourth Amendment. The Court stated that the amendment's protection against unreasonable searches and seizures does not extend to "open fields," but only to a person's home and its "CURTILAGE," THE AREA IMMEDIATELY SURROUnding and associated with the home. Id. at ----, 104 S.Ct. at 1741-42. The Court's holding reaffirmed its earlier holding in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), in which the Court stated that "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields." Id. at 59, 44 S.Ct. at 446. In another case, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Supreme Court rejected the notion that the Fourth Amendment covers only certain "constitutionally protected areas," and instead emphasized that the focus should be on whether the defendant had a reasonable expectation of privacy in the area that was searched or in the thing that was seized. Id. at 350-51, 88 S.Ct. at 510-11. The Court in Oliver held that "an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home," 466 U.S. at ----, 104 S.Ct. at 1741, and that "no expectation of privacy legitimately attaches to open fields." Id. at ----, 104 S.Ct. at 1742.

Therefore, under the holding in Oliver, whether the defendant's garden is protected by the Fourth Amendment depends on whether that area is considered part of the home or its curtilage. In the case at bar, the defendant's garden was not within the area immediately surrounding the defendant's home, but rather was located in a pasture across the road, and more than 400 feet from the road. Since the garden was located in an "open field," under Oliver the defendant had no legitimate expectation of privacy in his garden. Thus, the Fourth Amendment did not require the sheriff to procure a warrant before entering the garden and seizing the marijuana.

II.

The defendant's next claim is that the State failed to prove beyond a reasonable doubt that the defendant had cultivated the marijuana that was growing in the garden. Therefore, the defendant argues that the trial court erred in denying the defendant's motion for judgment of acquittal.

The test for evaluating the sufficiency of the evidence produced at trial is "whether the evidence, when viewed in the light most favorable to the State, is sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt." State v. Derouchie, 140 Vt. 437, 445, 440 A.2d 146, 150 (1981).

After reviewing the transcript of the trial in this case, we conclude that the State produced sufficient evidence to convince a reasonable trier of fact beyond a reasonable doubt that the defendant had cultivated the marijuana in the garden. First, the State produced evidence showing that the marijuana had been cultivated. Both the sheriff and Durkee testified that the marijuana was growing in rows, and that the ground around the marijuana had been weeded. Durkee also testified that in the spring the defendant had fenced in the garden, rototilled it, and fertilized it. We also think the State produced sufficient evidence to show that it was the defendant who had done the cultivating. Testimony revealed that the defendant worked in the garden at least once or twice a week, and referred to it as "my garden." Finally, the State's evidence showed that the only two people who had been seen working in the garden during the time the marijuana was growing were the defendant and his wife.

The defendant cites several opinions from other jurisdictions that address the issue of the sufficiency of proof of cultivation. In all of those cases, the defendants were convicted of possessing or cultivating marijuana. ¹ The defendant argues, however, that the evidence in those cases was not as "equivocal" as the evidence in this one. We disagree with the defendant's interpretation of the evidence in those cases.

The trial judge in this case instructed the jury that it could find the defendant to be an accomplice to the felony of cultivating marijuana (and thus punishable as a principal) if it found that the defendant knowingly participated in a common plan or scheme to cultivate marijuana. 13 V.S.A. § 3; State v. Carter, 138 Vt. 264, 268, 415 A.2d 185, 187 (1980). ² The defendant argues that the State did not produce sufficient evidence of a common plan to convict the defendant of being an accomplice. We disagree. The evidence, when viewed in the light most favorable to the State, State v. Derouchie, supra, 140 Vt. at 445, 440 A.2d at 150, establishes that the defendant was seen working in the garden with his wife. This evidence, combined with the other evidence listed above, could convince a reasonable trier of fact that the defendant was guilty of cultivating marijuana either individually or as an accomplice of his wife.

We conclude that the trial court did not err in denying the defendant's motion for judgment of acquittal based on insufficient evidence.

III.

The defendant next argues that the trial judge erroneously failed to instruct the jury that in order to convict the defendant it must find beyond a reasonable doubt that the defendant knowingly cultivated marijuana. Knowledge that the substance being cultivated is marijuana is an essential element of the offense for which the defendant was convicted. 18 V.S.A. § 4224(g) ("A person knowingly ... cultivating ... a regulated drug shall be imprisoned for not more than five years and fined not more than $10,000.00"). The trial court must instruct the jury on all essential elements of the crime. State v. McLaren, 135 Vt. 291, 296, 376 A.2d 34, 38 (1977).

The defendant did not object at trial to the judge's instruction on the element of knowledge. Therefore, this Court will not consider the defendant's claim on appeal unless "the circumstances indicate plain error has occurred." State v. Anderkin, 145 Vt. 240, 245, 487 A.2d 142, 144 (1984); see State v. Morrill, 127 Vt. 506, 511, 253 A.2d 142, 145 (1969) ("In order to reach the question attempted to be raised we must first...