State v. VanDusen, 96-120

• Court: United States State Supreme Court of Vermont
• Citation: 166 Vt. 240,691 A.2d 1053
• Docket Number: No. 96-120,96-120
• Parties: STATE of Vermont v. Scott C. VanDUSEN.
• Decision Date: 31 January 1997

Page 1053

691 A.2d 1053 166 Vt. 240 STATE of Vermont
v.
Scott C. VanDUSEN. No. 96-120. Supreme Court of Vermont. Jan. 31, 1997.

John T. Quinn, Addison County State's Attorney, Middlebury, and Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant Attorney General, Montpelier, for plaintiff-appellee.

Peter F. Langrock and Lisa B. Shelkrot of Langrock Sperry & Wool, Middlebury, for defendant-appellant.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

On May 31, 1995, Frederick Bennett was informed that several hundred feet of stainless steel pipe were missing from his barn in Shoreham. The steel pipe was traced to defendant Scott VanDusen, an employee at a farm in Addison. In August 1995, defendant was charged in a one-count information with felony possession of stolen property valued at approximately $4,500, in violation of 13 V.S.A. § 2561. Upon defendant's motion, the court reduced the charge to a misdemeanor, having found that the "only evidence is

Page 1054

poss[ession] of 18" pieces; hence [of] little value." Defendant waived the right to trial by jury, and after a court trial, was found guilty of misdemeanor possession of stolen property. Defendant was sentenced to serve three months in jail, to pay a fine of $1,000, and to pay restitution of $4,000. The issues on appeal are (1) whether the evidence was sufficient to support defendant's conviction of possession of stolen property valued at less than $500, (2) whether restitution is limited to the amount in the charge on which defendant was found guilty, and (3) whether the evidence is sufficient to support the restitution order. We affirm.

In December 1994, Bennett installed in his barn 500-700 feet of two-inch, stainless steel pipe, some of it new, and some of it used. The pipe was stolen from Bennett's barn between May 26 and May 31, 1995. According to the district court's written findings of fact, the pipe was "readily identifiable by the blue markings" of the person who installed it. Bennett conducted his own investigation of the theft and located the pipe, cut into short pieces of scrap, at Rutland Waste and Metal Company. A salesperson at Rutland Waste and Metal testified that she bought the scrap metal in July 1995 for $76 and was able to identify defendant as the seller. The court also found that, during the month of June, defendant was in possession of a chop saw that he borrowed from his employer without his employer's permission. The court concluded that defendant had been in possession of the steel pipe when it was in long pieces, that he had knowledge the pipe was stolen, and that he had used his employer's chop saw to cut the pipe into small pieces.

Defendant's first claim of error is that there was insufficient evidence to support his conviction. We will affirm the conviction if the "evidence, when viewed in the light most favorable to the State, fairly and reasonably supports the finding of guilt beyond a reasonable doubt." State v. Derouchie, 140 Vt. 437, 441, 440 A.2d 146, 147 (1981). The test is the same whether the evidence is direct or circumstantial. State v. Paradis, 146 Vt. 345, 347, 503 A.2d 132, 133 (1985).

Defendant admits to selling sawed-off pipe ends to Rutland Waste and Metal, but he disputes knowing that the pipe was stolen. Defendant claims that he received some of the scrap from his employer and found the rest abandoned near a bridge; he hypothesizes that someone else stole the pipe, cut it into pieces, and discarded the marked ends. The court rejected defendant's explanation that he was given the pipe by his employer, or that he found the pipe in short pieces along the side of the road. It determined that defendant "could not give a clear answer to the question of where he had stored the pipe" and "was surreptitious in borrowing the saw from his employer." D...