State v. Tetrault

2012 VT 51, 54 A.3d 146, 192 Vt. 616, 2012 WL 2855861, 2012 Vt. LEXIS 50
CourtSupreme Court of Vermont
DecidedJuly 5, 2012
DocketNo. 11-068
StatusPublished
Cited by14 cases

This text of 2012 VT 51 (State v. Tetrault) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tetrault, 2012 VT 51, 54 A.3d 146, 192 Vt. 616, 2012 WL 2855861, 2012 Vt. LEXIS 50 (Vt. 2012).

Opinion

¶ 1. Defendant Chase A. Tetrault and friends broke into a remote camp owned by A.C. (“camp owner”), damaging appliances and personal items. Defendant pled guilty to one count of unlawful trespass and the State requested restitution. At the restitution hearing, defendant argued that camp owner should be able to recover only the actual value of the damaged items at the time of the trespass, not their replacement cost. He also argued restitution could not be had for items that were not damaged, but merely used. The trial judge disagreed, and awarded camp owner the full amount of claimed damages. On appeal, defendant raises the same two arguments, along with a new argument that restitution is not appropriate at all in this case, because the crime of unlawful trespass does not include an element of destruction of property. We affirm.

¶ 2. State troopers responded to a report of a break-in and theft at a remote camp in Newbury. The property owner reported that four guns had been stolen, and he suspected the thieves were squatting at camp owner’s neighboring property. The troopers confirmed with camp owner that he had not given anyone permission to be at his camp, and then confronted one of the squatters and dis[617]*617covered the four stolen guns. A number of charges were brought against at least three individuals, including defendant, who was initially charged with burglary, grand larceny, and unlawful trespass.

¶ 3. Defendant and the State reached a plea agreement in which defendant would plead guilty to unlawful trespass, 13 V.S.A. § 3705(a), (c), and serve a sentence of zero to forty-one days in jail, with credit for time served. The State dropped the two remaining charges. The plea agreement included a requested restitution hearing, and was undertaken with mutual expectation of this restitution claim.

¶ 4. At the hearing, the only testimony came from camp owner. Camp owner provided a list of items for which he sought restitution: mattresses, sheets, and blankets; pots, pans, silverware, and dishes; microwave and toaster; water pump; throw rugs; locks; propane; and two days of labor. The trial court found these items totaled $1198.11, and can be roughly divided into two groups: items that were actually damaged or destroyed, and items that were merely used or soiled.

¶ 5. As to the items that were actually damaged or destroyed, camp owner testified that the microwave and toaster were both rendered inoperable. He replaced them with comparable models from WalMart for $69.96 and $29.97, respectively. A lock had been pried off his shed and thrown away, so he purchased a new lock for $20. The trespassers brought dogs that soiled the throw rugs at the camp, so camp owner replaced them for $38.91, also from Wal-Mart. The squatters used up the propane at a cost of $60. Finally, the squatters had burned out the water pump and that had to be replaced at a cost of $149. Defendant agreed that these items were, in fact, damaged, destroyed, or consumed, and that camp owner should be compensated for his losses. However, he argued that the proper measure of restitution for these items was their actual value at the time of the loss, not their replacement value. The court rejected this argument, noting that camp owner replaced the destroyed items with inexpensive goods and that he had not been “extravagant.”

¶ 6. Camp owner also testified as to the items that were merely used or soiled. He replaced three mattresses at a cost of $129 each. Though he conceded they were not actually damaged, because squatters slept in them, he “wouldn’t want to sleep in them again.” The same principle applied to the sheets and blankets, replaced for $32.95 and $50.46, respectively. He testified that the squatters used his pots, pans, dishes, and silverware, and that food was burned on to the pots and pans and left there for days, and he “wouldn’t want to use them again,” though he again conceded they were not fatally damaged. He replaced the kitchenware from WalMart at a total cost of $129.90. Defendant argued at the hearing that these items were not damaged, and he should not have to pay for them. He reasoned that replacing these items amounted to a payment for emotional distress, which is not permitted under our restitution laws. See State v. Jarvis, 146 Vt. 636, 639, 509 A.2d 1005,1006 (1986) (“Damages that are not readily ascertainable, such as pain and suffering, emotional trauma, loss of earning capacity, and wrongful death awards are not proper subjects of restitution.”).

¶ 7. The court also rejected this argument, holding that the restitution statute, 13 V.S.A. § 5301(4), does not require that the items be damaged, but only requires a link between the loss and the offense; that is, the loss must be “a direct result of the commission ... of a crime.” Even though these items were not rendered unusable, they were used by the squatters, and their actions deprived camp owner of their use. The court therefore found the losses were a direct result of the crime and awarded the full amount of restitution sought.

[618]*618¶ 8. Defendant now renews his arguments that the damaged items should have been replaced at their actual value at the time of the trespass, and that the merely soiled or used items should not have been replaced at all. Defendant also asks us to consider — for the first time on appeal •— whether 13 V.S.A. § 5301(4) precludes the State from seeking restitution in this case because the crime of unlawful trespass does not contain an element of destruction of property. A person is guilty of unlawful trespass if he “enters a building other than a residence, whose normal access is locked,” without legal authority or the consent of the person in lawful possession. 13 V.S.A. § 3705(a), (c). He argues that, while camp owner’s property would not have been damaged but for the unlawful trespass, the damages did not arise as a direct result of the criminal conduct for which he was convicted.

¶ 9. ‘Vermont law requires there to be a direct link between the loss for which restitution is ordered and the conduct for which defendant has been convicted.” State v. LaFlam, 2008 VT 108, ¶ 17, 184 Vt. 629, 965 A.2d 519 (mem.). However, we need not address the merits of this argument as defendant failed to argue at the restitution hearing that unlawful trespass could not be the predicate offense for an award of restitution for damages arising from his other actions while engaging in the trespass. See Barnett v. Town of Wolcott, 2009 VT 32, ¶ 7, 185 Vt. 627, 970 A.2d 1281 (mem.) (arguments not raised below are waived on appeal). We note that defendant did raise this argument in a motion to dismiss the restitution claim filed several weeks after the restitution hearing. However, since defendant, as noted earlier, had advance notice of camp owner’s specific restitution claim and did not object before or during the restitution hearing, there is no reason to depart from the rule that post-judgment motions are generally not sufficient to avoid a waiver. See State v. Sanders, 168 Vt. 60, 63, 716 A.2d 11, 14 (1998) (claims raised for the first time in motion for new trial are not preserved for appellate review); In re Entergy Nuclear Vermont Yankee, LLC, 2007 VT 103, ¶ 15, 182 Vt. 340, 939 A.2d 504 (“Although in certain circumstances litigants may preserve issues in post-judgment motions, they may not do so when those issues should have been raised in earlier proceedings before the Board.”).

¶ 10.

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Cite This Page — Counsel Stack

Bluebook (online)
2012 VT 51, 54 A.3d 146, 192 Vt. 616, 2012 WL 2855861, 2012 Vt. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tetrault-vt-2012.