State v. Patch, No. 83-025

• Docket Nº: No. 83-025
• Citation: 488 A.2d 755, 145 Vt. 344
• Case Date: January 18, 1985
• Court: United States State Supreme Court of Vermont

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488 A.2d 755 145 Vt. 344 STATE of Vermont
v.
Stanley F. PATCH, Sr. No. 83-025. Supreme Court of Vermont. Jan. 18, 1985.

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[145 Vt. 346] William S. Bos, Windsor County State's Atty., and Bruce Pasfield, Law Clerk (on brief), White River Junction, for plaintiff-appellee.

William J. Donahue, White River Junction, for defendant-appellant.

Before [145 Vt. 344] HILL, UNDERWOOD, PECK and GIBSON, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

[145 Vt. 346] UNDERWOOD, Justice.

Stanley Patch, the defendant, was convicted in a jury trial of unlawful mischief, a violation of 13 V.S.A. § 3701(c). ¹ The defendant appealed his conviction, setting forth four claimed grounds for reversal: (1) the defendant was privileged to use force to remove a continuing trespass, (2) the crime of unlawful mischief is a specific intent crime requiring a showing of malice on the part of the defendant, (3) the defendant lacked even a general intent to commit unlawful mischief, and (4) the trial court erred in refusing either to provide the jury with a copy of its jury instructions, or to reread its instructions in their entirety.

In 1975, the defendant's wife, Helen Patch, took title to property known as the Foundry Property, located in Springfield, Vermont. In April, 1977, three municipal employees were found digging on what was allegedly Mrs. Patch's property, apparently looking for a sewer pipe. In 1977, the Town of [145 Vt. 347] Springfield (Town) laid a new,

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four-inch underground conduit for utility lines on what was allegedly property owned by Mrs. Patch. Within this conduit, the Town installed wires connected to the Town's fire alarm system. In the summer of 1978, Mr. and Mrs. Patch hired a land surveyor to determine whether the conduit was located on Mrs. Patch's property. The surveyor determined that the conduit was located on her property for a distance of 95 feet, and so informed Mr. and Mrs. Patch and the Director of Public Works for the Town. In 1981, the Continental Telephone Company installed a new telephone cable in the same conduit.

The defendant objected to both instances of the installation of utility lines, by the town and by the telephone company, on what he claimed was property owned by his wife. These objections were made by him by letter as well as in person, on site, at the time the lines were installed. His first letter of objection was addressed to the Town, and was dated January 29, 1979; there was apparently no response to that letter. On May 11, 1982, following the installation of the telephone cable, the defendant's attorney wrote a letter of objection to the town's attorney. The town's attorney responded on May 13, 1982, by informing the defendant's attorney that Mrs. Patch's dispute was with the telephone company and not the town as "[t]he area in dispute appears not to involve any facilities the town of Springfield uses for its municipal use, ...."

On June 1, 1982, the defendant and one of his employees removed the manhole cover and thereby gained access to the underground utility lines located within the conduit below. The telephone cable was clearly labeled as such; the fire alarm cable was unlabeled. The defendant and his employee then caused both utility lines to be severed, resulting in both lines being inoperative for a period of time.

The defendant was originally charged with two felonies: (1) injury to lines, 30 V.S.A. § 2528, and (2) unlawful mischief, 13 V.S.A. § 3701(a). The defendant had a trial by jury. At the close of the State's case, the defendant moved for a directed verdict of acquittal on each of the charges. The court denied the defendant's motion in regard to the first count, but granted his motion in regard to the second count, permitting a lesser-included charge, unlawful mischief under 13 V.S.A. § 3701(c), to go to the jury. The jury found the defendant not [145 Vt. 348] guilty on the charge of injury to lines and guilty on the charge of unlawful mischief. A judgment of conviction was entered by the trial court; the defendant filed a timely appeal to this Court.

I.

The defendant's first claim of error is that the trial court erred in not instructing the jury, as set forth in his requests to charge, that the husband of a property owner is privileged to use reasonable force to remove a continuing trespass from his wife's property. The defendant's claim of privilege has its basis in common law tort doctrine. The defendant argues that the application of such a tort defense in criminal cases is generally recognized, and in support of his position cites the Model Penal Code and a seventy-six-year-old Vermont case. State v. Cleaveland, 82 Vt. 158, 72 A. 321 (1909). The State does not contest the applicability of the defense of privilege, recognized in tort law, to the present case. For this reason we will assume, without deciding, that such a defense is applicable in the present case.

The defendant cites Restatement (Second) of Torts § 87 (1965) to justify his actions in the present case. This section relates only to a "Defense Against Dispossessory Acts." The scope note states:

This Topic deals with the privilege of the actor to impose a harmful or offensive bodily contact or other bodily harm or a confinement or to put another in apprehension thereof for the purpose of preventing the other from dispossessing him of his land or chattels.

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(Emphasis added.) In the present case, it was alleged that the defendant harmed another's property, but he was not charged with either imposing harmful or offensive bodily contact or confinement, or putting anyone in fear of such contact or confinement. Therefore, § 87 is inapplicable to the facts of the present case.

The defendant also cites Restatement (Second) of Torts § 77 (1965) to justify his actions. The scope note to this section, under Topic 2, "Defense of Actor's Interest in His Exclusive Possession of Land and Chattels," states:

[145 Vt. 349] Topic 2 deals with the actor's privilege intentionally to invade another's interests of personality for the purpose of preventing or terminating another's intrusion upon the actor's possession of land or chattels.

Thus, it is apparent that § 77 would only be applicable in the present case if plaintiff were the owner or possessor of the land in question. ² Since the defendant's wife holds the record title to the property, we must apply Restatement (Second) of Torts § 86 (1965) ³ in conjunction with § 77. Under these sections, the defendant must satisfy all three conditions in order to be justified in exercising a forceful defense of his wife's property interests. The defendant must have reasonably believed that the alleged intrusion of the lines under his...