State v. Gillard

2013 VT 108, 88 A.3d 389, 195 Vt. 259, 2013 Vt. 108, 2013 WL 6124325, 2013 Vt. LEXIS 109

• Court: Supreme Court of Vermont
• Decided: November 22, 2013
• Docket: No. 12-433
• Status: Published

Opinions

Reiber, C.J.

¶ 1. Defendants appeal their convictions for unlawful trespass under 13 V.S.A. § 3705(a). They argue that the trial court erred first in not requiring the State to prove the ownership of the land on which they were arrested, second in not granting their request to include specific language about ownership and lawful possession in the jury charge, and third in not vacating their convictions in the interests of justice. We affirm.

¶ 2. Green Mountain Power Corporation (GMP) is an electric utility that operates several wind-power sites throughout Vermont. It obtained long-term leases of land on Lowell Mountain to construct and operate a twenty-one-turbine wind-power site along a ridge of the mountain. Construction required cutting trees, excavating, and blasting rock to produce a “crane road,” a leveled strip on which the turbines can be erected by crane. GMP began this work on September 1, 2011, with a tight schedule — its eligibility for $48 million in federal Production Tax Credits depended on the project becoming operation.1 by December 31, 2012.

¶ 3. GMP’s blasting subcontractor took several precautions to reduce the risks of injury from flying rock caused by the blasting, in.1uding establishing 1000-foot safety zones around each blasting site. No one was allowed within these zones for a specified period of time before and after each blast. Because a portion of the crane road would be within 100 feet of the leased property’s boundary line, some of the blast safety zones actually extended into neighboring land owned by Don.1d and Shirley Nelson, who stron.1y oppose the GMP project. Despite the proximity to an adjacent parcel, the entire area in and around the zones was remote, uninhabited forest, far from any structures.

¶ 4. On or around September 28, 2011, the Nelsons allowed a group to protest the wind-power site by setting up camp on the portion of the Nelsons’ land that fell within a blast safety zone. This prompted GMP and its blasting subcontractor to increase their safety measures, risking a delay of construction of more than five weeks and threatening GMP’s eligibility for the federal tax credits.

¶ 5. On October 13, 2011, GMP responded by initiating a civil suit against the Nelsons for nuisance and interference with contract. GMP asked the court to issue a preliminary injunction ordering the Nelsons and their guests to stay outside the safety zones during blasting times. The order would be enforceable by local police. The Nelsons counterclaimed, alleging that they were the true owners of a portion of the property leased by GMP and that GMP was therefore trespassing on their property. The Nelsons offered testimony from a licensed surveyor supporting their argument, but GMP offered its own leases, a recorded 2002 survey that contained an agreed-upon boundary line between the Nelsons and the owner of the neighboring land, and testimony from two licensed surveyors that disputed the an.1ysis of the Nelsons’ surveyor.

¶ 6. On November 1, 2011, the court granted GMP’s request for a preliminary injunction, con.1uding that the Nelsons and their guests were acting out of a desire to injure GMP by deliberately exposing themselves to potential blasting hazards, in.1icting liability or imposing delays. The court also denied the Nelsons’ request for a temporary restraining order, which would have barred GMP from occupying the disputed land. In denying the request, the court observed that there was a genuine issue of fact regarding the location of the boundary line and that the Nelsons had thus made out a prima facie case for civil trespass. Nevertheless, the court con.1uded that the Nelsons had not established that they would suffer irreparable harm if the court denied the restraining order or that such an order would serve the public interest. In contrast, the court noted that the harm to GMP from an injunction would be great.

¶ 7. On December 5, 2011, defendants passed through the existing property line — which had been posted by GMP — and entered a portion of the crane-road construction site located on land disputed by the Nelsons and GMP. Defendants’ presence posed a safety risk because GMP’s employees and subcontractors were using machinery and attempting to work. GMP halted construction, and a representative asked defendants to leave. Although aware of the boundary dispute, defendants refused to leave, claiming permission from the Nelsons, who they maintained owned the disputed land. GMP then contacted local police, who arrived at the scene and asked defendants to leave. Defendants again refused and were arrested.

¶ 8. The State charged defendants with unlawful trespass under 13 V.S.A. § 3705, which reads, in part:

(a) A person shall be imprisoned for not more than three months or fined not more than $500.00, or both, if, without legal authority or the consent of the person in lawful possession, he or she enters or remains on any land or in any place as to which notice against trespass is given by:

(1) Actual communication by the person in lawful possession or his or her agent or by a law enforcement officer acting on behalf of such person or his or her agent; or

(2) Signs or placards so designed and situated as to give reasonable notice.

13 V.S.A. § 3705 (2009) (emphasis added).

¶ 9. The trial was marked by the court’s emphasis that possession — not ownership — was dispositive to the trespass charge. Although the court denied the State’s motion in limine requesting the court exclude witnesses, evidence, and testimony regarding the civil suit entirely, it echoed the State’s concern that such evidence could potentially confuse jurors in the crimin.1 trial by improperly focusing their attention on the potential outcome of the civil boundary dispute rather than the status quo. Addressing this concern, the court specifically noted that it understood that such evidence would be narrowly targeted to help determine the exact location of the existing boundary, rather than the location of the boundary claimed by the Nelsons in the civil suit. The evidence would therefore address the issue of whether defendants were in fact located on land in possession by GMP at the time of their arrest.

¶ 10. The court’s concern about the distinction between possession and ownership was further evident in its instructions to the jury:

Every crime is made up of essential elements. ... In this case, the essential elements are that on the date and at the place alleged,

(1) Each Defendant;

(2) Entered and remained on land, specifically the Kingdom Community Wind Project site, operated by Green Mountain Power on Lowell Mountain in Lowell, Vermont;

(3) He or she did so without either legal authority or the consent of the person in lawful possession; and

(4) Each Defendant had received notice against trespass by actual communication by a law enforcement officer acting on behalf of the person in lawful possession or his or her agent. (Emphasis added.)

¶ 11. To clarify the third element, the court instructed, “Here, possession means actual control' by physical occupation and exercise of that control. Lawful possession means a rightful possession, authorized by law, and it means the right to exercise control over the property.”

¶ 12. In adopting these instructions, the court rejected defendants’ requested instructions. Defendants’ proposed instructions would have removed the emphasis on the relationship between physical occupation and possession and instead tasked the jury with determining whether the Nelsons had a superior right to possess the disputed land:

If someone other than Green Mountain Power has a superior right to possess the property and the defendants had the consent of that owner, then the defendants cannot be found guilty of unlawful trespass . . . You must determine whether the defendants had a lawful authority, or, in other words, they had some good faith color of right to remain on the property after having been asked to leave; and if they claim or have some color of right, some lawful authority or some claim to remain there, then they cannot be held crimin.1ly responsible under this statute for their refusal to leave.

¶ 13. The jury was thereby instructed that lawful possession was the dispositive issue with respect to the trespass charge. Shortly after beginning deliberations, the jury asked the court: “In Vermont case law, during a current property dispute, who is in control of property until the dispute is settled? Current owner, or person disputing, or both?” The court did not give any addition.1 instructions in response to the jury’s question, reasoning that its initial instruction could not be any clearer.

¶ 14. With this, the jury deliberated and returned its verdict, finding defendants guilty. The court denied defendants’ motions for judgment of acquittal and to dismiss. Defendants appeal these denials and their convictions.

I.

¶ 15. Defendants argue that the trial court erred by not requiring the State to prove beyond a reasonable doubt that Moose Mountain Forestry, LLC, owned the land on which defendants were arrested and leased the wind rights to Moose Mountain Wind, LLC, which in turn leased the rights to GMP. Defendants raised this argument through their motion for judgment of acquittal, and we address it de novo because the issues it raises are strictly matters of law. State v. Neisner, 2010 VT 112, ¶ 11, 189 Vt. 160, 16 A.3d 597 (“In assessing the trial court’s ruling on a question of law, we apply a de novo standard.”).

¶ 16. Although their traits may overlap, ownership and possession are distinct legal concepts. Ownership is the set of rights and duties allowing one to use, manage, alter, or convey property. See In re Interim Bylaw, 170 Vt. 541, 543, 742 A.2d 742, 744 (1999) (mem.) (use of land for residential purposes is one “strand” within owner’s “bundle of rights” (citing Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987))); Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 31, 181 Vt. 309, 917 A.2d 508 (citizens acquire “bundle of rights” when they obtain title to property (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027 (1992))); accord Black’s Law Dictionary 1215 (9th ed. 2009) (defining ownership as the “bun.1e of rights allowing one to use, manage, and enjoy property, in.1uding the right to convey it to others”). These rights and duties can be separated by the owner and given to other parties, as when a lan.1ord leases property to a tenant.

¶ 17. Possession, meanwhile, is a more limited right; it is the physical or constructive control of property. See Lyon v. Parker Young Co., 96 Vt. 361, 363-64, 119 A. 881, 881-82 (1923) (holding that possession was estáblished by enclosing land with wire fence, maintaining and tapping trees, and pasturing land); accord Black’s Law Dictionary 1281 (defining possession as “[t]he fact of having or holding property in one’s power . . . [t]he right under which one may exercise control over something”). The right to possess property — or “lawful possession” — may flow from one’s ownership of property but it also may flow from other sources, such as a lease, a court order, or even the circumstances surrounding the property’s use. See, e.g., Darling v. Ennis, 138 Vt. 311, 314, 415 A.2d 228, 231 (1980) (affirming that ejection action could not be maintained because plaintiff had been dis-seized of property through adverse possession).

¶ 18. The unlawful trespass statute protects parties from intrusions on their lawful possession of land. 13 V.S.A. § 3705; People v. Johnson, 906 P.2d 122, 125 (Colo. 1995) (“[T]respass is an invasion of one’s interest in habitation or possession of a building, rather than an invasion of one’s ownership interest in a building.”). Because it is not mentioned in the statute, proof of ownership is not an element required for an unlawful trespass conviction, so long as lawful possession is established. See State v. Allen, 146 Vt. 569, 572, 507 A.2d 975, 977 (1986) (“The statute creates and defines the offense.”); State v. Shady, 100 Vt. 404, 405, 138 A. 777, 777 (1927) (“In the matter of creating and defining crimin.1 offenses, the Legislature has a very broad discretion, with the exercise of which the courts can interfere only when constitution.1 limitations plainly have been transgressed.”). Other jurisdictions have held that even an owner may be prosecuted under the statute if he is not in lawful possession. See Johnson, 906 P.2d at 125 (holding that defendant’s arguable ownership interest does not bar his prosecution for trespass because he had no possessory interest in property); Langston v. State, 855 S.W.2d 718, 721 (Tex. Crim. App. 1993) (holding that ownership is not element of crimin.1 trespass and therefore does not have to be proved unless pleaded by state). Therefore, the State’s burden was to prove GMP’s lawful possession of the land on which defendants were arrested. As we note below, the State carried this burden by presenting evidence of the surrounding circumstances.

II.

¶ 19. Defendants also argue that the trial court’s refusal to grant their request to charge amounted to a violation of their constitution.1 right to defend themselves. We address this argument by determining whether the court properly exercised its discretion to instruct the jury on the law. We assign error only if the instructions, as a whole, did not “breathe[ ] the true spirit of the law” and thereby undermine our confidence in ’ the verdict. State v. Myers, 2011 VT 43, ¶ 22, 190 Vt. 29, 26 A.3d 9 (quotation omitted); see State v. Carpenter, 170 Vt. 371, 374-75, 749 A.2d 1137, 1139 (2000).

¶ 20. Defendants’ requested instructions would have been error. As we have observed, the requested instructions would have replaced the statute’s emphasis on lawful possession with an emphasis on ownership. 13 V.S.A. § 3705(a). Moreover, when a party disputes a boundary and therefore contests ownership of the portion of land encompassed by the disputed property line, that party may choose to institute a legal action. But the mere initiation of a suit does nothing to alter the status quo, nor does the law permit parties to press their as-yet-unresolved possessory claims by extra-judicial occupation. See Anello v. Vinci, 142 Vt. 583, 586, 458 A.2d 1117, 1119 (1983) (defendant tenant maintained possession of rental unit throughout ejection proceedings, not landlord); Darling, 138 Vt. at 313, 415 A.2d at 230 (defendant adverse possessor maintained possession of land throughout court proceedings even though plaintiff claimed ownership).

¶21. When considered as a whole, the court’s instructions accurately conveyed the law’s requirements to the jury. 13 V.S.A. § 3705(a). Specifically, they identified the State’s burden of proving lawful possession of the land on which defendants were arrested and also explained the concept of lawful possession. The trial court’s explanation, made through its clarification of the third element of unlawful trespass, aligns with the accepted meaning of the term. See Lyon, 96 Vt. at 363-64, 119 A. at 881-82.

¶ 22. The jury had ample evidence from which it could properly determine the issue of lawful possession and, ultimately, defendants’ guilt. As we have said, lawful possession may flow not only from ownership, but also from leases, court orders, or the circumstances of land’s use. Darling, 138 Vt. at 314, 415 A.2d at 231. Jurors heard testimony from the wind farm’s project manager regarding the leases and easements GMP had obtained from Moose Mountain Forestry, the record owner of the property where defendants were arrested. Copies of GMP’s recorded leases and easements, which described the location where defendants were arrested as belonging to Moose Mountain and being leased to GMP, were admitted into evidence. The manager testified that the easements gave GMP the exclusive right to restrict access to the parcels. Pursuant to that contractual authority, the manager testified, GMP took steps to exclude people from the parcels, in.1uding posting no-trespassing signs and stationing a twenty-four-hour security guard. Indeed, two of the defendants testified that they specifically passed the boundary line into the disputed property. Fin.1ly, Don.1d Nelson himself testified regarding the recorded survey on which the leases, easements and GMP’s site plans were based. Nelson indicated that he and his wife had, in fact, agreed to the boundary it displayed and had signed the survey before a notary.

¶ 23. Although jurors heard testimony regarding the existence of a civil dispute in which the Nelsons now contend that the boundary line is inaccurate, jurors had ample evidence from which to determine beyond a reasonable doubt that each element of the crimin.1 trespass statute was met: that GMP was in rightful possession of the land on which defendants were arrested based on the recorded easements and surveys, that the Nelsons did not have the authority to consent to defendants’ presence on the land, that defendants had in fact entered the land, and that defendants had been warned that they were trespassing.

¶24. The jury’s verdict is not undermined by the court’s limitation of evidence concerning the civil case between GMP and the Nelsons. Defendants sought to introduce evidence that would allow the jury to resolve the boundary-line dispute that existed between GMP and the Nelsons. Defendants were apparen.1y proceeding under the theory that if they could show in this crimin.1 trial that the existing property lines were inaccurate and that the Nelsons were later entitled tQ be declared the so-called true owners of the property where defendants were arrested, then GMP could not have obtained a lawful right to possess that same property from its lessors. That is simply not the case. As we noted above, a civil court’s acknowledgement of a prima facie case for trespass based on a disputed boundary is not the law’s fin.1 determination of land ownership. Consequen.1y, the Nelsons’ mere presentation of that prima facie case in the civil suit does not destroy GMP’s right to possess. See Anello, 142 Vt. at 586, 458 A.2d at 1119; Darling, 138 Vt. at 313, 415 A.2d at 230. Unless and until the civil court alters the status quo, GMP remains in lawful possession. Indeed, by denying the Nelsons’ request for a temporary restraining order, which would have prevented GMP from occupying the disputed land, the civil court implicitly recognized the status quo pending further judicial action. Therefore, the jury was free to review the evidence and consider the proper legal question: whether defendants had the consent of the person in lawful possession of the land on which they were arrested.

¶ 25. For this same reason, we observe that delaying the crimin.1 trial pending the resolution of the civil boundary dispute would not have led to a different result. The relevant question in defendants’ crimin.1 trial was whether GMP was in lawful possession of the property where defendants were arrested at the time of their arrest. The trial court therefore properly exercised its obligation to bar irrelevant evidence, V.R.E. 401 and 402, and its discretion to exclude potentially confusing or unnecessarily time-consuming evidence of limited probative value. See V.R.E. 403.

III.

¶ 26. Defendants fin.1ly argue that the trial court erred in not vacating their convictions in the interests of justice. They label their prosecution an “abuse of process.” Defendants appear to argue that the State simply may never prosecute a crimin.1 trespass when there is a pending civil dispute over the land’s ownership, even if the State is not taking a side in the civil suit through its prosecution.

¶ 27. The court has the discretion to dismiss an indictment if dismissal will serve the interests of justice. See V.R.Cr.P. 48(b)(2). Because this rule involves fundamental separation-of-powers considerations, the court applies it only in extraordinary circumstances, exercising its discretion to ensure that it does not improperly interfere with the State’s right to prosecute. State v. Sauve, 164 Vt. 134, 140, 666 A.2d 1164, 1167 (1995). We attribute error to the trial court only if it abused this discretion. Id. at 143, 666 A.2d at 1169.

¶ 28. Defendants cite cases that stand for the principle that the State should not prosecute a crimin.1 case for the sole purpose of resolving a civil dispute in favor of a particular party. See United States v. Miller, 659 F.2d 1029, 1030 (10th Cir. 1981) (holding, in trespass case involving dispute over ownership of land in possession of Indian tribe, that crimin.1 process should not be used for purpose of making fin.1 determination of whether defendant could enter land). However, several facts persuade us, both that the State is not attempting to resolve the ownership dispute in favor of GMP and that defendants’ prosecution serves the interests of justice. Moreover, these facts show why it is important not to adopt a per se rule barring the State from prosecuting a crimin.1 trespass when there is a pending civil dispute over the land’s ownership.

¶ 29. First, defendants’ illegal actions were not without an immediate victim. Defendants exposed GMP to substantial harm by purposefully interfering with its construction schedule and threatening its eligibility for federal tax credits. Second, our prohibition on self-help to further a land claim precludes the Nelsons or their guests from entering the disputed land. See Dustin v. Cowdry, 23 Vt. 631, 633 (1851) (holding that party claiming right of possession must exercise it through lawful remedy, such as action for trespass, not by un.1aterally evicting another by force). Third, defendants’ convictions do not lead to an unfair result because a civil court’s later determination that the Nelsons own the disputed land would do nothing to change the fact that GMP was in lawful possession before such a ruling. We therefore do not find that the trial court abused its discretion by not dismissing the case in the interests of justice.

Affirmed.