Unlawful Trespass

  • CR28-851.  Land (actual communication), 13 V.S.A. § 3705(a)(1)(A) (01/31/23)
  • CR28-856.  Land (signs or placards), 13 V.S.A. § 3705(a)(1)(B) (01/31/23)
  • CR28-861.  Locked Building, 13 V.S.A. § 3705(c) (03/03/06)
  • CR28-871.  Dwelling House, 13 V.S.A. § 3705(d) (03/03/06)

Reporter’s Note

CR28-851, -856 – Unlawful Trespass (Land).  The third essential element—the license element—does not contain an implied notice requirement. See State v. Richards, 2021 VT 40, ¶ 26, 215 Vt. 1 (affirming trial court’s jury instructions).

The fourth essential element requires proof that the defendant had received notice against trespass. The State can prove notice by “actual communication,” which is a “subjective standard.” State v. MacFarland, 2021 VT 87, ¶ 34 (concluding that trial court “should have considered defendant’s actual subjective experience of the encounter with the bouncer; it is not enough to conclude that defendant ‘refused’ to leave the bar without explaining, to some extent, how that related to her state of mind at the time”). Alternatively, “[t]he statute allows notice to be proven with objective evidence of reasonable notice through signage and without showing that a defendant subjectively saw and understood the signs.” State v. Pixley, 2018 VT 110, ¶ 13. The instructions given in Pixley “properly directed the jury that it could find defendant received notice ‘if the owner, or the owner’s agent posted signs or placards that were designated and situated in a manner that provided reasonable notice,’” and thus “accurately reflected the notice element . . . .” Id. ¶ 16.

CR28-871 – Unlawful Trespass (Dwelling House). The unlawful trespass statute, 13 V.S.A. § 3705(d), derives from the Model Penal Code. State v. Fanger, 164 Vt. 48, 52 (1995) (citing State v. Kreth, 150 Vt. 406, 409 (1988); Model Penal Code § 221.2(1)). The third essential element requires proof of the defendant’s subjective knowledge that he or she was neither licensed nor privileged to do so. This element may be satisfied by circumstantial evidence. State v. Cram, 2008 VT 55, ¶¶ 7–13, 184 Vt. 531 (mem.).