- 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)
- CR28-858. Motor Vehicle, 13 V.S.A. § 3705(c) (03/09/26)
- CR28-861. Locked Building, 13 V.S.A. § 3705(d) (07/12/26)
- CR28-871. Dwelling House, 13 V.S.A. § 3705(e) (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, 216 Vt. 126 (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, 208 Vt. 529. 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.
CR28-861 – Locked Building. The model instruction strictly tracks the statutory language. There are multiple brackets in the second and third elements. The bracketed language “[building other than a residence]” in the second element goes with “[the access of the building was normally locked, whether or not the access was actually locked]” in the third element. The bracketed language “[residence]” in the second element goes with “[(Def)_______________ did so in violation of an order of any court of competent jurisdiction in this State]” in the third element.
Note that the statutory language is silent as to any knowledge or license element. A prior version of § 3705(d) (then designated as § 3705(c)) “contained a knowledge element, including the phrase ‘knowing he is not licensed or privileged to do so.’ But in 1982, the Legislature amended the statute to remove this exact language.” State v. Richards, 2021 VT 40, ¶ 16, 215 Vt. 1. Our Supreme Court explained that “this amendment underscores our conclusion that the Legislature made a deliberate choice to include a knowledge element in some subsections of the statute and omit this element in others.” Id.
The statutory language is also unclear whether the “court order” element applies to “locked buildings other than residence” in addition to residences. The Supreme Court’s discussion in Richards suggests that it does not, however: “Section 3705(c) prohibits trespass to ‘a building other than a residence, whose access is normally locked’ or ‘a residence in violation of an order of any court.’” Richards, 2021 VT 40, ¶ 16 (quoting 13 V.S.A. § 3705(c)). Further clarification and guidance is needed from the legislature and the Supreme Court.
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.).