Part 1. Crimes

Chapter 1. General Provisions

§ 1. Felonies and misdemeanors defined.

Any other provision of law notwithstanding, any offense whose maximum term of imprisonment is more than two years, for life, or which may be punished by death is a felony. Any other offense is a misdemeanor.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 1; 1973, No. 109 , § 2, eff. 30 days from April 25, 1973.

History

Source.

V.S. 1947, § 8615. P.L. § 8750. G.L. § 7126. P.S. § 5983. V.S. § 5166. R.L. § 4334.

Amendments

—1973. Substituted “two years” for “five years”.

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Accessories and principals.

Action of court, during trial of defendant charged as a principal in offense of simple assault by recklessly causing bodily injury, in permitting state to offer evidence that defendant was acting as an accomplice did not improperly deprive defendant of opportunity to adequately or timely prepare a defense to charge that she was acting as an accomplice; because charged offense was a misdemeanor, defendant could be informed against, tried and convicted as a principal, irrespective of whether the nature of defendant’s participation in the commission of the offense was as a principal or an accomplice. State v. Sturgeon, 140 Vt. 240, 436 A.2d 777, 1981 Vt. LEXIS 595 (1981).

Effect of fine as alternative punishment.

Under provisions of this section, fact that an offense may be punished by such imprisonment makes it a felony, and fact that there is an alternative penalty of a fine does not reduce the offense to a misdemeanor. In re Mears, 124 Vt. 131, 198 A.2d 27, 1964 Vt. LEXIS 72 (1964); State v. Howard, 108 Vt. 137, 183 A. 497, 1936 Vt. LEXIS 163 (1936).

Effect of section on pleading.

This section afforded no test for requirements of pleading, and hence an indictment for adultery, which was felony only by virtue of general statutory classification, did not have to allege act to have been “feloniously” done, since intent was not an ingredient of the crime. State v. Clark, 83 Vt. 305, 75 A. 534, 1910 Vt. LEXIS 194 (1910).

Offenses charged conjunctively.

Where a statute defines as an offense two or more separate and distinct acts, things, or transactions enumerated in the disjunctive, the offenses may be charged conjunctively and the respondent found guilty on any one. State v. Barr, 126 Vt. 112, 223 A.2d 462, 1966 Vt. LEXIS 173 (1966).

Cited.

Cited in State v. Colby, 140 Vt. 638, 443 A.2d 456, 1982 Vt. LEXIS 468 (1982); United States v. Whitcomb, 767 F. Supp. 79, 1991 U.S. Dist. LEXIS 9576 (D. Vt. 1991); State v. Gardner, 167 Vt. 600, 709 A.2d 499, 1998 Vt. LEXIS 15 (1998); State v. Rideout, 2007 VT 59A, 182 Vt. 113, 933 A.2d 706, 2007 Vt. LEXIS 164 (July 20, 2007) (mem.).

§ 2. Crimes committed partly outside State.

A person who, with intent to commit a crime, does an act within this State in execution or part execution of such intent, which culminates in the commission of a crime either within or without this State, shall be punished for such crime in this State in the same manner as if the same had been committed entirely within this State. A crime committed by means of an electronic communication, including a telephonic communication, shall be considered to have been committed at either the place where the communication originated or the place where it was received.

HISTORY: Amended 1999, No. 124 (Adj. Sess.), § 1.

History

Source.

V.S. 1947, § 8613. P.L. § 8748. 1925, No. 129 .

Amendments

—1999 (Adj. Sess.). Added the second sentence.

ANNOTATIONS

Jurisdiction.

This section should not be interpreted to deprive Vermont of a state’s common-law jurisdiction over out-of-state conduct that produces harmful results within the state. State v. Doyen, 165 Vt. 43, 676 A.2d 345, 1996 Vt. LEXIS 24 (1996).

In the case of defendant convicted of counseling burning of his automobile to defraud his insurer, since the arrangements for burning the automobile were made with the accomplices who actually did it in Vermont and defendant left the automobile with the keys in it and a note of instruction to his accomplices at his Vermont worksite, trial court correctly exercised jurisdiction over the offense charged, notwithstanding the fact that the burning took place in New Hampshire. State v. Mosher, 143 Vt. 197, 465 A.2d 261, 1983 Vt. LEXIS 500 (1983).

§ 3. Accessory aiding commission of felony.

A person who aids in the commission of a felony shall be punished as a principal.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 2; 1973, No. 109 , § 3, eff. 30 days from April 25, 1973.

History

Source.

V.S. 1947, § 8606. P.L. § 8741. G.L. § 7118. P.S. § 5976. V.S. § 5159. R.L. § 4327. G.S. 120, § 13. R.S. 102, § 8.

Amendments

—1973. Rephrased.

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Acquittal of principal.

The acquittal of an alleged principal does not collaterally estop the prosecution from seeking conviction of an alleged aider and abettor. State v. Miller, 146 Vt. 164, 502 A.2d 832, 1985 Vt. LEXIS 381 (1985).

Common law.

This section addresses only felony liability and thus, does not repeal the common law crime of aiding in the commission of a misdemeanor. State v. Damon, 2005 VT 54, 178 Vt. 564, 878 A.2d 256, 2004 Vt. LEXIS 440 (2004) (mem.).

This section does not preclude charging a criminal actor as a principal if he or she could be charged as such under the common law. State v. Brown, 147 Vt. 324, 515 A.2d 1059, 1986 Vt. LEXIS 409 (1986).

Evidence.

Fact of complicity in or aiding and abetting commission of crime could be proved by circumstantial evidence. State v. Orlandi, 106 Vt. 165, 170 A. 908, 1934 Vt. LEXIS 154 (1934).

Indictment and information.

Where the evidence establishes beyond a reasonable doubt that a defendant acted with the same intent as required to convict the principal, a defendant charged only as a principal may be convicted on the basis of accomplice liability. State v. Pitts, 174 Vt. 21, 800 A.2d 481, 2002 Vt. LEXIS 132 (2002).

State’s attorney could join counts for manslaughter, attempt to assault with a deadly weapon, being an accessory to such attempt and two counts for conspiracy to rob two different stores in one information. State v. Dopp, 127 Vt. 567, 255 A.2d 186, 1969 Vt. LEXIS 278 (1969).

Where information joined counts for manslaughter, attempt to assault with a deadly weapon, being an accessory to such attempt and two counts for conspiracy to rob two different stores, the court would, in the interests of orderly criminal procedure and protection of accused against prejudice which would result from the introduction of evidence on each offense, grant accused the right to have the state elect only one count upon which to proceed with trial. State v. Dopp, 127 Vt. 567, 255 A.2d 186, 1969 Vt. LEXIS 278 (1969).

Instructions.

In a prosecution of defendant for aiding in aggravated murder, jury instructions accurately and clearly described the State’s burden of proof where they explained the elements of the crime, and stated that to prove defendant’s guilt as an accomplice, the State needed to show that defendant and his accomplice acted under a common plan. The court provided an in-depth explanation of what was required to establish a “common plan,” including the requirement that defendant share his accomplice’s intent to commit all of the legal elements of the offense. State v. Perez, 2006 VT 53, 180 Vt. 388, 912 A.2d 944, 2006 Vt. LEXIS 139 (2006).

Instruction accurately reflected jurisprudence on accomplice liability where it required that, in order to convict defendant, the jury had to find that defendant and the principal came to a common plan, that defendant materially participated in that, and that she just didn’t happen to be there when it happened or that the principal did it without defendant’s knowledge, understanding, or agreement. State v. Pitts, 174 Vt. 21, 800 A.2d 481, 2002 Vt. LEXIS 132 (2002).

Intent.

Defendant need not share with the principal the intent to use the exact means of the crime, so long as she shares the intent to commit all the elements of the crime. State v. Pitts, 174 Vt. 21, 800 A.2d 481, 2002 Vt. LEXIS 132 (2002).

Although 13 V.S.A. § 3 , which provides that a person who aids in the commission of a felony shall be punished as a principal, does not include an intent element, there is an implied element of intent in the statute. State v. Bacon, 163 Vt. 279, 658 A.2d 54, 1995 Vt. LEXIS 28, cert. denied, 516 U.S. 837, 116 S. Ct. 117, 133 L. Ed. 2d 67, 1995 U.S. LEXIS 5713 (1995).

The purpose of the accomplice-liability rule is not to permit the conviction of participants to a crime who never intended a co-felon to commit the acts in fact committed; rather, the rule is intended to allow the conviction of defendants who intended to, and did in fact, aid in the commission of the charged offense, but who were not the primary perpetrators of the crime or did not participate in every aspect of the planned illegal act. State v. Bacon, 163 Vt. 279, 658 A.2d 54, 1995 Vt. LEXIS 28, cert. denied, 516 U.S. 837, 116 S. Ct. 117, 133 L. Ed. 2d 67, 1995 U.S. LEXIS 5713 (1995).

Trial court did not err in refusing defendant’s request to instruct jury that defendant could be convicted of aiding in the commission of a felony (bank robbery) only if he had the intent of permanently depriving the bank of its property, even though court’s view of the intent element for assault and robbery was erroneous and the defendant’s view was correct, where court’s instruction on accessory liability was correct and specifically stated that defendant could be convicted only if he acted with same intent as that required for his accomplice. State v. Davignon, 152 Vt. 209, 565 A.2d 1301, 1989 Vt. LEXIS 149 (1989).

Misprision of felony.

Misprision of felony was offense at common law, and was a criminal neglect either to prevent a felony from being committed or to bring offender to justice after its commission, but without such previous concert with or subsequent assistance of him as will make the concealer an accessory, either before or after the fact. State v. Wilson, 80 Vt. 249, 67 A. 533, 1907 Vt. LEXIS 98 (1907).

The common law as to the misprision of felony is a part of law of this state. State v. Wilson, 80 Vt. 249, 67 A. 533, 1907 Vt. LEXIS 98 (1907).

Information for misprision of felony was insufficient, unless it alleged that respondent intended to obstruct and hinder due course of justice and to cause felon to escape punishment. State v. Wilson, 80 Vt. 249, 67 A. 533, 1907 Vt. LEXIS 98 (1907).

Participants as principals.

Accomplice liability is meant to convict defendants who intended to, and did in fact, aid in the commission of the charged offense, but who were not the primary perpetrators of the crime or did not participate in every aspect of the planned illegal act. State v. Pitts, 174 Vt. 21, 800 A.2d 481, 2002 Vt. LEXIS 132 (2002).

Jury instruction that a finding of participation in the execution of the unlawful design would support conviction as a principal and that mere presence was not enough to establish participation was in accordance with this section. State v. Miller, 146 Vt. 164, 502 A.2d 832, 1985 Vt. LEXIS 381 (1985).

This section permits the conviction of a person charged as a principal, who has been shown to have done no more than aid in the commission of the crime. State v. Jaramillo, 140 Vt. 206, 436 A.2d 757, 1981 Vt. LEXIS 588 (1981).

In misdemeanors, all participating parties are considered to be principals. State v. Sears, 130 Vt. 379, 296 A.2d 218, 1972 Vt. LEXIS 286 (1972); State v. Bosworth, 124 Vt. 3, 197 A.2d 477, 1963 Vt. LEXIS 20 (1963).

Historical division of principals between first and second degrees, the latter being an accessory before the fact who was not present, or at least was not acting, during commission of the crime, often called an aider and abettor, is not part of Vermont law. State v. Sears, 130 Vt. 379, 296 A.2d 218, 1972 Vt. LEXIS 286 (1972).

Where several persons combine under a common understanding and with a common purpose to do an illegal act, each one is criminally responsible for the act of each and all who participate with him in the execution of the unlawful design. State v. Barr, 126 Vt. 112, 223 A.2d 462, 1966 Vt. LEXIS 173 (1966); State v. Orlandi, 106 Vt. 165, 170 A. 908, 1934 Vt. LEXIS 154 (1934).

All who knowingly and intentionally participate in commission of misdemeanor are principals, and may be convicted thereof either separately or jointly. State v. Orlandi, 106 Vt. 165, 170 A. 908, 1934 Vt. LEXIS 154 (1934).

Pecuniary injuries.

Defendant’s motion for a judgment of acquittal aiding in aggravated murder was properly denied where there was ample evidence in this case to establish defendant’s guilt. State v. Perez, 2006 VT 53, 180 Vt. 388, 912 A.2d 944, 2006 Vt. LEXIS 139 (2006).

Review.

The issue on review of a conviction under this section is whether a jury could reasonably conclude beyond a reasonable doubt that a preconceived criminal plan existed in which defendant participant. State v. Miller, 146 Vt. 164, 502 A.2d 832, 1985 Vt. LEXIS 381 (1985).

Statute of limitations.

Accessory to felony charge is not a separate and distinct “other felony” for purposes of the three-year statute of limitations, as it is not wholly divorced from the principal crime to which the person is allegedly an accessory. In re Hyde, 2015 VT 106, 200 Vt. 103, 129 A.3d 651, 2015 Vt. LEXIS 85 (2015).

State’s prosecution of defendant as an accessory to commit sexual assault on a child under the age of 16 was within the statute of limitations. Assuming arguendo that the limitations period could be triggered by the commission of the acts, as opposed to the later reporting of those acts, the limitations period began with the last alleged instance of defendant’s aiding and abetting a friend to sexually molest defendant’s daughter; either under the original charge against defendant or the amended charge to which she pled, the State’s prosecution was within the statute of limitations. In re Hyde, 2015 VT 106, 200 Vt. 103, 129 A.3d 651, 2015 Vt. LEXIS 85 (2015).

Accessory felony charges are categorized alongside their underlying principal felonies for purposes of the statute of limitations. In re Hyde, 2015 VT 106, 200 Vt. 103, 129 A.3d 651, 2015 Vt. LEXIS 85 (2015).

Sufficiency of acts to establish participation.

To establish defendant’s guilt of aiding in aggravated murder of two victims, the State needed to prove that defendant aided his accomplice in the commission of each murder and had the requisite intent with respect to each murder. State v. Perez, 2006 VT 53, 180 Vt. 388, 912 A.2d 944, 2006 Vt. LEXIS 139 (2006).

Since “aiding” in commission of a crime is a broader concept than “aiding and abetting”, special pleading may be necessary in some cases. State v. Sears, 130 Vt. 379, 296 A.2d 218, 1972 Vt. LEXIS 286 (1972).

The presence of a preconceived plan with a common criminal objective, plus participation in its accomplishment to some substantial measure, will support an information charging a participant as a principal. State v. Sears, 130 Vt. 379, 296 A.2d 218, 1972 Vt. LEXIS 286 (1972).

Presence at scene of crime is not alone sufficient to establish participation or aiding or abetting, unless there is something to show that person so present in some way had procured or incited or encouraged the act done by the principal perpetrator, yet where such presence is by preconcert with a design to encourage, incite, or, if it should become necessary, to render assistance, then, even though no particular act is shown, there is participation. State v. Mecier, 126 Vt. 260, 227 A.2d 298, 1967 Vt. LEXIS 181 (1967); State v. Orlandi, 106 Vt. 165, 170 A. 908, 1934 Vt. LEXIS 154 (1934).

Cited.

Cited in State v. Stewart, 140 Vt. 389, 438 A.2d 671, 1981 Vt. LEXIS 615 (1981); State v. Neale, 145 Vt. 423, 491 A.2d 1025, 1985 Vt. LEXIS 313 (1985); State v. Hamlin, 146 Vt. 97, 499 A.2d 45, 1985 Vt. LEXIS 338 (1985); State v. Knapp, 147 Vt. 56, 509 A.2d 1010, 1986 Vt. LEXIS 357 (1986); State v. Smail, 151 Vt. 340, 560 A.2d 955, 1989 Vt. LEXIS 73 (1989); State v. Parker, 151 Vt. 378, 560 A.2d 383, 1989 Vt. LEXIS 72 (1989); State v. Millette, 173 Vt. 596, 795 A.2d 1182, 2002 Vt. LEXIS 15 (2002) (mem.).

§ 4. Accessory before the fact.

A person who is accessory before the fact by counseling, hiring, or otherwise procuring an offense to be committed may be informed against or indicted, tried, convicted, and punished as if he or she were a principal offender in the Criminal Division of the Superior Court in the unit where the principal might be prosecuted.

HISTORY: Amended 1973, No. 118 , § 3, eff. Oct. 1, 1973; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 94.

History

Source.

V.S. 1947, § 8607. P.L. § 8742. G.L. § 7119. P.S. § 5977. V.S. § 5160. R.L. § 4328. 1870, No. 5 , § 2. G.S. 120, §§ 13, 14, 15. R.S. 102, §§ 8, 9, 10.

Amendments

—2009 (Adj. Sess.) Inserted “criminal division of the” preceding “superior court” and deleted “county or in the district court in the territorial” preceding “unit where”, and made minor changes in punctuation.

—1973 (Adj. Sess.). Substituted “superior court” for “county court.”

—1973. Rephrased and provided for trial in county or district court.

ANNOTATIONS

Acquittal of principal.

The acquittal of an alleged principal does not collaterally estop the prosecution from seeking conviction of an alleged aider and abettor. State v. Miller, 146 Vt. 164, 502 A.2d 832, 1985 Vt. LEXIS 381 (1985).

Application to felonies.

This section placed accessories before the fact upon same grade as principals in felonies as well as in misdemeanors. State v. Marsh, 70 Vt. 288, 40 A. 836, 1898 Vt. LEXIS 42 (1898).

Common law.

This section does not preclude charging a criminal actor as a principal if he or she could be charged as such under the common law. State v. Brown, 147 Vt. 324, 515 A.2d 1059, 1986 Vt. LEXIS 409 (1986).

Elements.

Where respondent and others formed plan for filling out and cashing stolen blank checks, and respondent and a friend, falsely posing as a married couple and using identification papers showing friend to be a different person, cashed a check, friend presenting check and respondent standing some distance away in store, and, when they were arrested a short time later, respondent possessed social security card used by friend to show a different identity, respondent was an accessory before the fact under statute and could, under such statute, be charged and punished as a principal. State v. Sears, 130 Vt. 379, 296 A.2d 218, 1972 Vt. LEXIS 286 (1972).

Section permissive.

The word “may” in this section was used in its ordinary sense and was permissive rather than mandatory. State v. Levine, 117 Vt. 320, 91 A.2d 678, 1952 Vt. LEXIS 141 (1952).

Cited.

Cited in State v. Hamlin, 146 Vt. 97, 499 A.2d 45, 1985 Vt. LEXIS 338 (1985).

§ 5. Accessory after the fact.

A person not standing in the relation of husband, wife, parent, grandparent, child, grandchild, brother, or sister, by consanguinity or affinity, to an offender, who, after the commission of a felony, harbors, conceals, maintains, or assists such offender with intent that he or she shall avoid or escape arrest or punishment therefor, shall be imprisoned not more than seven years or fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8608. P.L. § 8743. G.L. § 7120. P.S. § 5978. V.S. § 5161. R.L. § 4329. G.S. 120, § 16. R.S. 102, § 11.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Elements.

A necessary element of the offense of being an accessory after the fact is that none of the relationships enumerated in this section exists between the principal and the accessory. State v. Williams, 142 Vt. 81, 451 A.2d 1142, 1982 Vt. LEXIS 603 (1982).

Evidence.

Evidence indicating that murderer had a plan to burn automobile used in the crime, defendant went to murderer’s apartment, they left shortly thereafter, murderer in the automobile and stating he had “no idea where to take it” and defendant in another vehicle and saying “don’t worry about it, I know,” there being no evidence of the direction each took, and that the automobile was found ablaze shortly thereafter, there being no direct evidence defendant had been there or burned the automobile or of the cause of the fire, was insufficient to sustain a finding that defendant helped burn the automobile, and conviction would be reversed where it was charged defendant helped murderer avoid arrest and punishment by threatening an eyewitness and helping to destroy the automobile and where the court instructed that defendant be found guilty if he did either of the alleged acts, for the verdict could have been based on an allegation not supported by the evidence. Woodmansee v. Stoneman, 133 Vt. 449, 344 A.2d 26, 1975 Vt. LEXIS 428 (1975).

Where information charged that defendant assisted a named person in avoiding arrest and imprisonment for murdering a named person, in that he threatened the life of an eyewitness to prevent her from telling the truth about the killing and he helped the murderer destroy an automobile which had been used in the killing, and where the jury was instructed to find defendant guilty if it found he did either of the alleged acts, there had to be sufficient evidence of both allegations, and the verdict would be set aside where the evidence that defendant helped destroy the automobile was insufficient, because under the conjunctive allegation in the information, and the court’s instructions, the guilty verdict could have been based on either or both allegations. Woodmansee v. Stoneman, 133 Vt. 449, 344 A.2d 26, 1975 Vt. LEXIS 428 (1975).

Exemption.

The manifest intent of the exemption in this section is to avoid criminalizing assistance to family members in evading prosecution, and the task of the supreme court is to give effect to the intent behind the exemption which the legislature has delineated. State v. Williams, 142 Vt. 81, 451 A.2d 1142, 1982 Vt. LEXIS 603 (1982).

By its terms this section does not criminalize acts assisting siblings (or other related persons) escape prosecution, and does not remove the exemption if the sibling committed the underlying felony with others. State v. Williams, 142 Vt. 81, 451 A.2d 1142, 1982 Vt. LEXIS 603 (1982).

In the case of defendant convicted of being an accessory after the fact to a homicide, where the underlying homicide was committed jointly by the defendant’s brother and another person, and where the defendant’s brother was a juvenile at the time of the offense, this section and its sibling exemption applied to the defendant and the defendant could not be prosecuted under this section, since conviction of the underlying felony was not required by this section, but rather commission of an act which constituted a felony was the predicate to liability for assisting the offender; moreover, the exemption was defined by one’s relationship to an “offender” who committed a “felony”; and therefore, although the defendant’s brother could not have been punished as an adult for his act at the time of the offense, there was no question that the act he committed was a felony. State v. Williams, 142 Vt. 81, 451 A.2d 1142, 1982 Vt. LEXIS 603 (1982).

In the case of defendant convicted of being an accessory after the fact to a homicide, where the underlying homicide was committed jointly by the defendant’s brother and another person, and where the defendant’s purported crime consisted entirely of deeds helping both his brother and the other person, whom he never assisted independently of his brother, the defendant’s actions on behalf of his brother were not criminal under this section; to construe this section otherwise would distort its plain language. State v. Williams, 142 Vt. 81, 451 A.2d 1142, 1982 Vt. LEXIS 603 (1982).

In the case of defendant convicted of being an accessory after the fact to a homicide, where the underlying homicide was committed by the defendant’s brother and another person, the construction of this section offered by the State, namely that it did not exempt the protection of a co-defendant of a related offender, would frustrate the intent of the exemption by criminally penalizing individuals who assist family members on the basis of the involvement of co-defendants. State v. Williams, 142 Vt. 81, 451 A.2d 1142, 1982 Vt. LEXIS 603 (1982).

In the case of defendant convicted of being an accessory after the fact to a homicide, where the underlying homicide was committed jointly by the defendant’s brother and another person, and where the defendant’s purported crime consisted entirely of deeds helping both his brother and the other person, whom he never assisted independently of his brother, even if the supreme court considered the application of this section ambiguous, the court would conclude that the defendant could not be prosecuted for his conduct, since the defendant’s construction of this section, that the sibling exemption applied where the sibling committed the underlying felony with others, was reasonable and must therefore be preferred to the contrary construction offered by the State. State v. Williams, 142 Vt. 81, 451 A.2d 1142, 1982 Vt. LEXIS 603 (1982).

Sufficiency of indictment.

An indictment charging one as accessory after fact under this section must allege that respondent did not stand in any of those relations to the principal offender, which are excepted from the operation of the statute. State v. Butler, 17 Vt. 145, 1845 Vt. LEXIS 5 (1845).

Principal offender and the accessory may be indicted together. State v. Butler, 17 Vt. 145, 1845 Vt. LEXIS 5 (1845).

Cited.

Cited in State v. Ritchie, 144 Vt. 121, 473 A.2d 1164, 1984 Vt. LEXIS 418 (1984); State v. Davignon, 152 Vt. 209, 565 A.2d 1301, 1989 Vt. LEXIS 149 (1989); State v. Platt, 158 Vt. 423, 610 A.2d 139, 1992 Vt. LEXIS 68 (1992).

§ 6. Prosecution and venue.

An accessory after the fact may be prosecuted, convicted, and punished whether the principal has or has not been previously convicted, or is or is not amenable to justice, in the Criminal Division of the Superior Court in the unit where such person became an accessory or where the principal offense is committed.

HISTORY: Amended 1973, No. 118 , § 4, eff. Oct. 1, 1973; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 95.

History

Source.

V.S. 1947, § 8609. P.L. § 8744. G.L. § 7121. P.S. § 5979. V.S. § 5162. R.L. § 4330. G.S. 120, § 17. R.S. 102, § 12.

Amendments

—2009 (Adj. Sess.) Substituted “An accessory” for “Such accessory”, inserted “criminal division of the” preceding “superior court” and deleted “county or in the district court in the territorial” preceding “unit where”.

—1973 (Adj. Sess.). Substituted “superior court” for “county court.”

—1973. Rephrased and provided for trial in county or district court.

§ 7. Inciting to felony.

A person who endeavors to incite, procure, or hire another person to commit a felony, though a felony is not actually committed as a result of such inciting, hiring, or procuring, shall be imprisoned not more than five years or fined not more than $500.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8611. P.L. § 8746. G.L. § 7123. 1910, No. 231 .

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Common law.

This section does not contain any unambiguous language preempting the common law doctrine of innocent agent. State v. Brown, 147 Vt. 324, 515 A.2d 1059, 1986 Vt. LEXIS 409 (1986).

Elements of crime.

The crime of solicitation, under this section, is completed when a person advises, counsels or solicits another to commit a felony regardless of whether the crime is actually completed. State v. Brown, 147 Vt. 324, 515 A.2d 1059, 1986 Vt. LEXIS 409 (1986).

Defendant could have been charged with solicitation under this section for ordering another person to perform sexual intercourse with the victim, even though the order was not carried out. State v. Brown, 147 Vt. 324, 515 A.2d 1059, 1986 Vt. LEXIS 409 (1986).

Under this section it is a crime to endeavor to incite a felony whether or not such endeavor was successful. State v. Ciocca, 125 Vt. 64, 209 A.2d 507, 1965 Vt. LEXIS 199 (1965).

One who advises, counsels, or solicits another to commit a felony, without more, violates this section, even though such crime is not committed or attempted. State v. Hudon, 103 Vt. 17, 151 A. 562, 1930 Vt. LEXIS 107 (1930).

Evidence.

In regard to charge of inciting another to commit a felony, evidence of instant messaging text of defendant’s requests to mother to pose her child, take pictures for his viewing, and solicitation of her consent to carry on his own lewd photo session was sufficient for a jury to reasonably conclude that defendant had incited mother to use her daughter in a sexual performance, and/or to consent to her daughter’s participation in a sexual performance, both felony offenses. State v. Voorheis, 2004 VT 10, 176 Vt. 265, 844 A.2d 794, 2004 Vt. LEXIS 18 (2004).

It is not necessary to demonstrate that arson was actually committed in order to sustain a conviction under this section for endeavoring to incite and procure and hire other persons to commit a felony. State v. Ciocca, 125 Vt. 64, 209 A.2d 507, 1965 Vt. LEXIS 199 (1965).

In such prosecution, whether what respondent did amounted to an endeavor to incite witness to burn his barn, was question for the jury, and not for witness, to be determined from all evidence in case bearing on that issue. State v. Hudon, 103 Vt. 17, 151 A. 562, 1930 Vt. LEXIS 107 (1930).

Sufficiency of information.

Fact of defendant’s offering money to his niece in return for her allowing him to have sex with her eight year old daughter was sufficient to charge him with a violation of this section because he had solicited the niece to commit the felony of being an accomplice (prohibited by 13 V.S.A. § 3 ) to defendant’s aggravated sexual assault (prohibited by 13 V.S.A. § 3 253(a)(8) ). State v. Rooney, 173 Vt. 506, 788 A.2d 490, 2001 Vt. LEXIS 383 (2001) (mem.).

Information charging that respondent did willfully, maliciously, and feloniously endeavor to incite, procure, and hire a specified person to burn latter’s barn, with intent to defraud certain insurance company, was sufficient to charge violation of this section. State v. Hudon, 103 Vt. 17, 151 A. 562, 1930 Vt. LEXIS 107 (1930).

§ 8. Compounding felony.

A person having knowledge of the commission of a felony who takes money, or a gratuity or reward, or an engagement therefor, upon an agreement or understanding, expressed or implied, to compound or conceal such felony or not to prosecute therefor, or not to give evidence thereof, shall be imprisoned not more than 10 years or fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8614. P.L. § 8749. G.L. § 7125. P.S. § 5982. V.S. § 5165. R.L. § 4333. G.S. 115, § 18. R.S. 97, § 18.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Jury instructions.

Court at murder trial did not err in refusing to instruct jury on lesser-related offense of compounding a felony, where no evidence of that offense was presented at trial, and it was not consistent with defendant’s theory of the case. State v. Corliss, 168 Vt. 333, 721 A.2d 438, 1998 Vt. LEXIS 17 (1998).

Misprision of felony.

See annotations under § 3 of this title.

§ 9. Attempts.

  1. A person who attempts to commit an offense and does an act toward the commission thereof, but by reason of being interrupted or prevented fails in the execution of the same, shall be punished as herein provided unless other express provision is made by law for the punishment of the attempt. If the offense attempted to be committed is murder, aggravated murder, kidnapping, arson causing death, human trafficking, aggravated human trafficking, aggravated sexual assault, or sexual assault, a person shall be punished as the offense attempted to be committed is by law punishable.
  2. If the offense attempted to be committed is a felony other than those set forth in subsection (a) of this section, a person shall be punished by the less severe of the following punishments:
    1. imprisonment for not more than 10 years or fined not more than $10,000.00, or both; or
    2. as the offense attempted to be committed is by law punishable.
  3. If the offense attempted to be committed is a misdemeanor, a person shall be imprisoned or fined, or both, in an amount not to exceed one-half the maximum penalty for which the offense so attempted to be committed is by law punishable.

HISTORY: Amended 1971, No. 199 (Adj. Sess.) § 3; 1973, No. 109 , § 4, eff. 30 days from April 25, 1973; 1993, No. 95 , § 5; 2011, No. 55 , § 5.

History

Source.

V.S. 1947, § 8610. P.L. § 8745. G.L. § 7122. P.S. § 5980. V.S. § 5163. 1894, No. 297 . R.L. § 4331. 1878, No. 23 , § 1.

Amendments

—2011. Subsec. (a): Inserted “human trafficking, aggravated human trafficking,” following “arson causing death,”.

—1993. Designated the existing introductory paragraph as subsec. (a), substituted “the” for “such” preceding “attempt” in the first sentence and rewrote the second sentence of that subsection, added subsec. (b), and designated the existing concluding paragraph as subsec. (c).

—1973. Section amended generally.

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Construction.

Amendment to this section in 1993 impliedly repealed 13 V.S.A. § 2307 . State v. Scribner, 170 Vt. 537, 746 A.2d 145, 1999 Vt. LEXIS 233 (1999) (mem.).

Elements of attempt.

Defendant’s act of stabbing the victim twice in the throat constituted attempt to murder, as the victim’s neck injury was sufficiently serious as to prove specific intent to kill, and a jury could reasonably interpret defendant’s words that he would be back “to finish the job” to mean that he would be back later to kill the victim. Further, defendant’s decision to leave the scene before he succeeded in killing the victim did not negate his specific intent to kill, as he was not thwarted by impossibility and had already committed the overt act. State v. Johnson, 2013 VT 116, 195 Vt. 498, 90 A.3d 874, 2013 Vt. LEXIS 112 (2013).

An attempt requires intent to commit a particular crime and an overt act designed to carry out that intent. Hence, the act must advance the actor’s conduct beyond mere intent, and reach far enough toward accomplishing the desired result to amount to the commencement of the consummation. Further, once the actor has committed the requisite overt act, the offense is complete, and abandonment of the enterprise does not negate guilt. State v. Synnott, 2005 VT 19, 178 Vt. 66, 872 A.2d 874, 2005 Vt. LEXIS 21 (2005).

Intent to commit grand larceny is not conditioned on showing that defendant was specifically aware of value of object stolen. State v. Houle, 157 Vt. 640, 596 A.2d 1292, 1991 Vt. LEXIS 157 (1991) (mem.).

The offense of an attempt to escape from lawful confinement is committed when an act is done with intent to gain release from custody and the performance of that act is part of a series of events which would lead to the intended result if not interrupted. State v. Morse, 130 Vt. 92, 286 A.2d 286, 1971 Vt. LEXIS 229 (1971).

Where, while garbage truck was at last pickup station before leaving prison, prisoner was emptied out of large refuse barrel along with its contents onto truck’s tail gate and discovered immediately by a guard, guard’s testimony to such events and identification of prisoner was proper basis for denial of motion for directed verdict. State v. Morse, 130 Vt. 92, 286 A.2d 286, 1971 Vt. LEXIS 229 (1971).

To constitute an attempt to commit a crime, act must be of such a character as to advance conduct of actor beyond sphere of mere intent; it must reach far enough towards accomplishment of desired result to amount to commencement of the consummation. State v. Hurley, 79 Vt. 28, 64 A. 78, 1906 Vt. LEXIS 95 (1906).

Mere facts that a prisoner lawfully in jail arranged for procuring saws adapted to jail breaking, and thereby got them into his possession, with intent therewith to break open the jail for purpose of escaping, did not constitute an attempt to break jail. State v. Hurley, 79 Vt. 28, 64 A. 78, 1906 Vt. LEXIS 95 (1906).

Indictment and information.

State’s attorney could join counts for manslaughter, attempt to assault with a deadly weapon, being an accessory to such attempt and two counts for conspiracy to rob two different stores in one information. State v. Dopp, 127 Vt. 567, 255 A.2d 186, 1969 Vt. LEXIS 278 (1969).

Where information joined counts for manslaughter, attempt to assault with a deadly weapon, being an accessory to such attempt and two counts for conspiracy to rob two different stores, the court would, in the interests of orderly criminal procedure and protection of accused against prejudice which would result from the introduction of evidence on each offense, grant accused the right to have the state elect only one count upon which to proceed with trial. State v. Dopp, 127 Vt. 567, 255 A.2d 186, 1969 Vt. LEXIS 278 (1969).

Pleading.

Under Vermont practice, substance and effect of state’s motion, prior to trial, to consolidate, for purposes of trial, a charge of passing a forged check and a charge of attempting to pass another check, also forged, was that the two cases be simply tried together, each retaining its identity, not that they be consolidated. State v. Moore, 131 Vt. 149, 303 A.2d 141, 1973 Vt. LEXIS 284 (1973).

Validity of conviction.

Where evidence of the attack on the victim showed that defendant’s actions had advanced from “mere intent” to the “commencement of the consummation” of a sexual assault, it was sufficient to show, beyond a reasonable doubt, that defendant was guilty of attempted sexual assault; therefore, the trial court correctly denied his motion for judgment of acquittal on that charge. State v. Goodhue, 2003 VT 85, 175 Vt. 457, 833 A.2d 861, 2003 Vt. LEXIS 267 (2003).

Defendant was properly convicted for two crimes, larceny from the person and attempted assault and robbery, where he committed larceny from the person of one victim by ripping a necklace with a coin off of her neck, and attempted assault and robbery by threatening to shoot that victim and her husband to gain access to their safe and its contents. State v. Setien, 173 Vt. 576, 795 A.2d 1135, 2002 Vt. LEXIS 1 (2002) (mem.).

Argument was rejected that failure by fish and wildlife department to strictly conform to guidelines, by use of a deer decoy, invalidated conviction for attempting to take a wild deer out of season. State v. Curtis, 157 Vt. 629, 603 A.2d 356, 1991 Vt. LEXIS 226 (1991).

Validity of sentence.

Where the crime was charged as attempted kidnapping because the victim escaped, but the initial restraint was accomplished with violence, and was reinitiated with violence and a weapon each time the victim managed to get away from defendant, sentencing in the same manner as the completed crime, as the legislature has decreed, is not constitutionally disproportionate. State v. Alexander, 2005 VT 25, 178 Vt. 482, 871 A.2d 972, 2005 Vt. LEXIS 32 (2005) (mem.).

Voyeurism.

Overt act of attempted voyeurism requires an action that would be likely to end in acquiring a view of the complainant’s intimate areas. Here, because defendant was unable to see the complainant’s intimate areas from his position on the ground, his actions of standing and looking would not be likely to end in the consummation of the crime intended; the act of merely looking at complainant’s window from a place where no view of her intimate areas was possible was insufficient for the jury to find defendant guilty of attempted voyeurism. State v. Devoid, 2010 VT 86, 188 Vt. 445, 8 A.3d 1076, 2010 Vt. LEXIS 85 (2010).

Where defendant was unable to see the complainant’s intimate areas from his position on the ground, the State had not provided sufficient evidence of his intent to view the complainant’s intimate areas as required for a criminal attempt. Defendant apparently obtained sexual gratification from watching the upper body of a woman he believed was naked, and the Court could infer from that fact that he would like to see her naked; the Court could not infer from the facts in the record, however, that he had the intent to commit voyeurism or would have committed that crime. State v. Devoid, 2010 VT 86, 188 Vt. 445, 8 A.3d 1076, 2010 Vt. LEXIS 85 (2010).

When defendant, who should have been acquitted of attempted voyeurism, was unable to see the complainant’s intimate areas from his position on the ground, there was no mistake; defendant necessarily knew that he could not complete the crime, and thus his conduct was equivocal. As a result, this was not an impossibility case. State v. Devoid, 2010 VT 86, 188 Vt. 445, 8 A.3d 1076, 2010 Vt. LEXIS 85 (2010).

Cited.

Cited in State v. Nash, 144 Vt. 427, 479 A.2d 757, 1984 Vt. LEXIS 491 (1984); State v. Brown, 153 Vt. 263, 571 A.2d 643, 1989 Vt. LEXIS 272 (1989); State v. Stevens, 2003 VT 15, 175 Vt. 503, 825 A.2d 8, 2003 Vt. LEXIS 14 (2003) (mem.).

§ 10. Punishment for attempt on indictment charging commission.

Under an information or indictment charging the commission of a felony, according as the proof is, the jury may return a verdict that the respondent is not guilty of the principal offense, but is guilty of an attempt to commit the same, in the manner stated in section 9 of this title, or the court may allow the respondent to plead guilty of such an attempt. In either case, the court shall pass sentence accordingly.

History

Source.

V.S. 1947, § 8612. P.L. § 8747. G.L. § 7124. P.S. § 5981. V.S. § 5164. R.L. § 4332. 1878, No. 23 , § 2.

ANNOTATIONS

Instruction to jury.

Court’s instruction to the jury on the crime of attempted rape where defendant was charged only with rape did not constitute unfair surprise; since a jury may return a verdict of guilty of attempt of the felony when the defendant is charged with the commission of that felony, an attempt being a lesser included offense, the judge correctly understood his duty to be to include a charge on attempt. State v. Young, 139 Vt. 535, 433 A.2d 254, 1981 Vt. LEXIS 549 (1981).

§ 11. Habitual criminals.

A person who, after having been three times convicted within this State of felonies or attempts to commit felonies, or under the law of any other state, government, or country, of crimes which, if committed within this State, would be felonious, commits a felony other than murder within this State, may be sentenced upon conviction of such fourth or subsequent offense to imprisonment up to and including life.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1995, No. 50 , § 1.

History

Source.

1949, No. 201 . V.S. 1947, § 8616. P.L. § 8751. 1927, No. 128 .

Amendments

—1995. Substituted “times” for “time” following “three” and “up to and including” for “for the term of his natural” following “imprisonment”.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

CROSS REFERENCES

Exception to habitual criminal law, see 28 V.S.A. § 1533 .

ANNOTATIONS

Generally.

This section defines a class of individuals, fourth offenders, subject to enhanced penalty upon conviction of a felony, and once the status of habitual offender is achieved the penalty for each subsequent offense is subject to enhancement to life imprisonment. State v. Kasper, 137 Vt. 184, 404 A.2d 85, 1979 Vt. LEXIS 977 (1979).

Arraignment.

Plain error does not arise from a failure to arraign on a charge under the habitual criminal statute where the defendant had actual notice of the charge, had an opportunity to defend against it, and waived his right to a jury determination on the existence of the prior convictions required for an enhanced sentence under the statute; because defendant did not suffer any prejudice from the lack of an arraignment on the habitual offender allegation, the conviction must be affirmed. State v. Ingerson, 2004 VT 36, 176 Vt. 428, 852 A.2d 567, 2004 Vt. LEXIS 319 (2004).

Bail.

While it was true that defendant was not charged under the habitual offender statute—a statute that acted as a sentencing enhancement, not as a separate criminal violation—and that the felonies with which defendant was charged were not in themselves punishable by life imprisonment, this did not change the fact that defendant was charged with several felonies that, for him, were punishable by life imprisonment under the habitual offender statute. The plain language of the statute governing release in cases punishable by life imprisonment unambiguously applied to defendant, and the rule of lenity was therefore inapplicable. State v. Pellerin, 2010 VT 26, 187 Vt. 482, 996 A.2d 204, 2010 Vt. LEXIS 25 (2010).

Court finds no basis for exempting from the statute governing release in cases punishable by life imprisonment those defendants whose potential for life imprisonment arises out of the habitual offender statute. State v. Pellerin, 2010 VT 26, 187 Vt. 482, 996 A.2d 204, 2010 Vt. LEXIS 25 (2010).

Bifurcated trial.

Where trial court divided trial into two parts, one covering felony charges and the other covering habitual offender charge, and ruled that it would use a single jury but that prosecution would not be allowed to use for impeachment any prior convictions to be used in the second part of the trial, such ruling protected defendant from prejudice, and court did not have to let him know before jury drawing whether or not the prior convictions charged in the habitual offender complaint were going to be used in impeachment and if so, let him know whether same jury would be used in second part of trial. State v. Angelucci, 137 Vt. 272, 405 A.2d 33, 1979 Vt. LEXIS 981 (1979).

Constitutional law.

There was no merit to defendant’s suggestion that the same prior felonies could not support a habitual-offender enhancement on more than one subsequent charge. The trial court’s application of the habitual-offender enhancement did not violate the Double Jeopardy Clause, and was thus not error of any kind, much less plain error. State v. Stanley, 2015 VT 117, 200 Vt. 341, 131 A.3d 1114, 2015 Vt. LEXIS 97 (2015).

Applying three factors in considering whether defendant’s sentence, as a habitual criminal, amounted to cruel and unusual punishment proscribed by the Eighth Amendment despite being permissible under the habitual-criminal statute, revealed no constitutional infirmity. The factors applied are: (1) the gravity of the offense and the harshness of the penalty; (2) sentences imposed for other offenses in the same jurisdiction; and (3) sentences imposed for the same offense in other jurisdictions. State v. Rideout, 2007 VT 59A, 182 Vt. 113, 933 A.2d 706, 2007 Vt. LEXIS 164 (July 20, 2007).

Claim that habitual offender charge was brought by prosecutor because defendant had vigorously asserted his constitutional rights in a prior case did not show unlawful discrimination under Fourteenth Amendment requiring dismissal of the charge. State v. Angelucci, 137 Vt. 272, 405 A.2d 33, 1979 Vt. LEXIS 981 (1979).

Discretion.

Where the court imposed a sentence that was within statutory limits and was grounded explicitly on legitimate goals of criminal justice, namely restraint and deterrence, there was no abuse of the court’s discretion in sentencing defendant to a term of twenty to thirty years in prison for being a habitual offender. State v. Ingerson, 2004 VT 36, 176 Vt. 428, 852 A.2d 567, 2004 Vt. LEXIS 319 (2004).

Function of this section is to replace the sentence for a fourth or subsequent conviction of a felony with a life sentence, but as it reads “may be sentenced . . . for the term of his natural life,” the life sentence is not compelled. State v. Angelucci, 137 Vt. 272, 405 A.2d 33, 1979 Vt. LEXIS 981 (1979).

Effect of lack of notice.

Charging defendant as habitual criminal was not “double enhancement” of his prior convictions for DUI, and since defendant properly faced charge punishable by life imprisonment, he could lawfully be held without bail. State v. Gardner, 167 Vt. 600, 709 A.2d 499, 1998 Vt. LEXIS 15 (1998) (mem.).

Inasmuch as life sentence option was not open in case for failure of state to give appropriate notice of intention to seek life sentence on felony charge following conviction of three felonies, this section which permits life sentence did not bar states’ attorney from proceeding by information under provisions of § 5652 of this title. State v. Cabrera, 127 Vt. 193, 243 A.2d 784, 1968 Vt. LEXIS 200, cert. denied, 393 U.S. 968, 89 S. Ct. 404, 21 L. Ed. 2d 379, 1968 U.S. LEXIS 239 (1968).

Felony convictions of minors.

The language of Vermont statutes defining a felony and providing that criminal proceedings against defendants between the ages of sixteen and eighteen may be transferred to juvenile court from the criminal courts at the discretion of the criminal courts makes plain that the Legislature intended that felony convictions of minor defendants could, in the trial court’s discretion, be counted toward habitual-criminal status under Vermont’s habitual-criminal statute. State v. Rideout, 2007 VT 59A, 182 Vt. 113, 933 A.2d 706, 2007 Vt. LEXIS 164 (July 20, 2007).

Where defendant, then sixteen, pleaded guilty in adult court to offenses and did not either move for transfer to juvenile court or appeal from the venue of his convictions, which he could have done, it could not be said that the district court abused its discretion in imposing an enhanced sentence on defendant based on these prior convictions. State v. Rideout, 2007 VT 59A, 182 Vt. 113, 933 A.2d 706, 2007 Vt. LEXIS 164 (July 20, 2007).

Defendant failed in his argument, based on statutes governing the sealing of records of court proceedings in which a minor is tried and convicted as an adult, that “convictions that can be expunged, upon application, from a defendant’s record because they were obtained when he was a juvenile, should not be the basis for enhancing his exposure, now as an adult, to a potential life sentence.” State v. Rideout, 2007 VT 59A, 182 Vt. 113, 933 A.2d 706, 2007 Vt. LEXIS 164 (July 20, 2007).

Foreign crimes.

Crimes of robbery and aggravated robbery under Pennsylvania law both include all the elements of the Vermont crime of larceny from the person, a felony, and are thus, under this section, crimes which would be felonies in Vermont and which are therefore available to establish one as an habitual offender. State v. Angelucci, 137 Vt. 272, 405 A.2d 33, 1979 Vt. LEXIS 981 (1979).

Where Pennsylvania law under which defendant was convicted made it a crime to attempt to cause or intentionally or knowingly cause bodily harm to a police officer making or attempting an arrest which is lawful, and Vermont law made it a felony if, with intent to prevent a law enforcement officer from performing a lawful duty, one causes physical injury to any person, Pennsylvania conviction was for a crime which would a felony under Vermont law and thus was available to establish defendant as guilty under this section. State v. Angelucci, 137 Vt. 272, 405 A.2d 33, 1979 Vt. LEXIS 981 (1979).

Pennsylvania crime of kidnapping would be felony in Vermont under Vermont kidnapping law and is thus available to establish one as an habitual offender under this section’s provision requiring three prior convictions of Vermont felonies or attempts to commit felonies or of crimes of other states which would be felonious if committed in Vermont. State v. Angelucci, 137 Vt. 272, 405 A.2d 33, 1979 Vt. LEXIS 981 (1979).

Habitual offenders.

There was no error in sentencing defendant, who was convicted of violating an abuse-prevention order and of five misdemeanors, to five to fourteen years under the Habitual Offender Act. Defendant’s sentence was neither contrary to his plea agreement, nor inconsistent with the minimum authorized by statutes other than the Act, nor beyond the enhanced maximum allowed by the Act. State v. Carpenter, 2013 VT 28, 193 Vt. 484, 70 A.3d 1023, 2013 Vt. LEXIS 26 (2013).

Habitual Offender Act says only that habitual offenders may be imprisoned “up to and including life”; there is no expressed limit on the court’s authority to sentence to any term less than “up to” life. The statute is silent as to any consideration of the maximum penalty otherwise provided for nonhabitual offenders. State v. Carpenter, 2013 VT 28, 193 Vt. 484, 70 A.3d 1023, 2013 Vt. LEXIS 26 (2013).

Person convicted of three felonies arising from same incident could, upon finding that he had five previous felony convictions, have his three sentences enhanced each to life imprisonment under this section. State v. Kasper, 137 Vt. 184, 404 A.2d 85, 1979 Vt. LEXIS 977 (1979).

Jury instructions.

Any error in the jury instructions as to habitual offenders, to which defendant had not objected at trial, was harmless. At no time had defendant contended that any of the predicate convictions were invalid or unproven, and defense counsel conceded during oral argument that all six predicate convictions were valid. State v. Bain, 2009 VT 34, 185 Vt. 541, 975 A.2d 628, 2009 Vt. LEXIS 37 (2009).

Notice to defendant.

This section which permits state to seek life sentence on felony charge following conviction of three felonies is not available to state unless appropriate notice of that intent is given by process to defendant, just as notice must be given in other cases where repeated offenses may increase the penalty. State v. Cabrera, 127 Vt. 193, 243 A.2d 784, 1968 Vt. LEXIS 200, cert. denied, 393 U.S. 968, 89 S. Ct. 404, 21 L. Ed. 2d 379, 1968 U.S. LEXIS 239 (1968).

Proof of convictions.

Because convictions are presumptively valid, defendant has the burden to prove that his prior convictions based on guilty pleas were not valid. State v. Setien, 173 Vt. 576, 795 A.2d 1135, 2002 Vt. LEXIS 1 (2002) (mem.).

Trial court did not err in denying defendant’s request to exclude from the jury’s consideration two convictions for which he could not obtain transcripts because he failed to make some showing that the prior convictions were invalid. State v. Setien, 173 Vt. 576, 795 A.2d 1135, 2002 Vt. LEXIS 1 (2002) (mem.).

Same day convictions.

Convictions on the same day, for crimes arising from separate transactions, may be used to establish one as guilty under the habitual offender law. State v. Angelucci, 137 Vt. 272, 405 A.2d 33, 1979 Vt. LEXIS 981 (1979).

Sentence options.

When one is found guilty of being an habitual offender for committing a fourth or subsequent felony, the sentencing options are for the felony constituting the fourth or subsequent conviction or for life under this section, and a sentence above the statutory maximum for the fourth or subsequent offense, but below life, is unauthorized. State v. Angelucci, 137 Vt. 272, 405 A.2d 33, 1979 Vt. LEXIS 981 (1979).

Unanimous verdict.

There was no uncertainty about the unanimity of the jury’s verdict on all four of defendant’s prior convictions where the trial court asked the jury if it reached a determination on whether each conviction the State presented — attempt to defraud, false pretenses, burglary, and retail theft — was a felony and that defendant was the person who committed the offenses, and the jury responded affirmatively to each of the four convictions separately, responding that defendant “was the one who did it.” State v. Setien, 173 Vt. 576, 795 A.2d 1135, 2002 Vt. LEXIS 1 (2002) (mem.).

Cited.

Cited in In re Kasper, 145 Vt. 117, 483 A.2d 608, 1984 Vt. LEXIS 553 (1984); State v. Kasper, 152 Vt. 435, 566 A.2d 982, 1989 Vt. LEXIS 191 (1989).

Notes to Opinions

Indictment to show conviction.

The indictment should allege offense for which party is to be tried, and also set up in indictment separate counts alleging his conviction at certain times and places as the record may show. 1942 Vt. Op. Att'y Gen. 422.

§ 11a. Repealed. 2019, No. 77, § 6, eff. June 19, 2019.

History

Former § 11a. Former § 11a, relating to violent career criminals, was derived from 1995, No. 50 , § 2.

Law Reviews —

Restricting the right to bail: Vermont’s new constitutional bail amendment, see 8 Vt. L. Rev. 347 (1983).

§ 12. Criminal use of anesthetics.

A person who administers, attempts to administer, or causes to be administered to a person, chloroform, sulphuric ether, or any anesthetic agent, with intent to commit a crime or offense, or who secretly commits or attempts to commit a crime or offense against a person or the property of one who is rendered insensible or unconscious or incapable of resistence by such anesthetic agent, shall be imprisoned for life or for not less than three years.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15.

History

Source.

V.S. 1947, § 8501. P.L. § 8637. G.L. § 7034. P.S. § 5901. V.S. § 5078. R.L. § 4261. G.S. 118, § 6.

Amendments

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

§ 13. Repealed. 1999, No. 4, § 7.

History

Former § 13. Former § 13, relating to definition of listed crimes, was derived from 1995, No. 170 (Adj. Sess.), § 2. For present similar provisions, see 13 V.S.A. § 5301(7) .

§ 14. Lesser included offenses.

  1. Upon indictment or information for any offense, a person may be convicted of a lesser included offense if supported by the evidence. If requested by either party, the jury shall be informed of the lesser included offense if supported by the evidence. The court, on its own motion, may raise the issue of a lesser included offense at a jury charge conference.
  2. If requested by either party, or in his or her discretion, the judge in a court trial shall consider a lesser included offense if supported by the evidence.

HISTORY: Added 1997, No. 153 (Adj. Sess.), § 1.

ANNOTATIONS

Instructions.

Nothing in the lesser-included-offense statute implies that the lesser-included-offense instruction cannot be given if the defendant objects to it; indeed, it states that either party may request the instruction and that it “shall” be granted if supported by the evidence. By extension, this means that (1) the State may request a lesser-included-offense instruction, even over the defendant’s objections, and (2) this request must be granted if supported by the evidence. State v. Bean, 2016 VT 73, 202 Vt. 361, 149 A.3d 487, 2016 Vt. LEXIS 72 (2016).

Because of its value to the State and society, it is appropriate that Vermont law mandates the granting of the State’s request for a lesser-included-offense instruction so long as the evidence supports it, even over the defendant’s objections. Thus, the trial court did not err in giving a lesser-included-offense instruction requested by the State when defendant objected to it. State v. Bean, 2016 VT 73, 202 Vt. 361, 149 A.3d 487, 2016 Vt. LEXIS 72 (2016).

Chapter 3. Abortion

History

Repeal of chapter. 2013, No. 98 (Adj. Sess.), § 1, eff. March 24, 2014, provides for the repeal of this chapter, comprising sections 101-104 of this title.

§§ 101-104. Repealed. 2013, No. 98 (Adj. Sess.), § 1, eff. March. 24, 2014.

History

Former §§ 101-104. Former § 101, relating to definition and punishment for abortions, was derived from V.S. 1947, § 8474; P.L. § 8608; G.L. § 7013; P.S. § 5889; V.S. § 5063; R.L. § 4247; 1867, No. 57 , § 1. G.S. 117, § 10; 1846, No. 33 and amended by 1971, No. 199 (Adj. Sess.), § 15.

Former § 102, relating to dying declaration as evidence, was derived from V.S. 1947, § 8475; 1935, No. 203 , § 1.

Former § 103, relating to joining with murder indictment, was derived from V.S. 1947, § 8476; P.L. § 8609; G.L. § 7014; P.S. § 5890; V.S. § 5064; R.L. § 4248; 1867, No. 57 , § 2.

Former § 104, relating to advertising or dealing in anything to cause miscarriage, was derived from V.S. 1947, § 8477; P.L. § 8610; G.L. § 7015; P.S. § 5891; V.S. § 5065; R.L. § 4249; 1867, No. 57 , § 3 and amended by 1971, No. 199 (Adj. Sess.), § 15; and 1981, No. 223 (Adj. Sess.), § 23.

ANNOTATIONS.

Annotations From Former § 101

Constitutionality.

Accomplices.

Application.

Burden of proof.

Charge to jury.

Effect of guilty plea.

Elements of crime.

Evidence.

Purpose.

Sufficiency of information.

Annotations From Former § 101

Constitutionality.

This section, under which petitioner for post-conviction relief was charged with willfully assisting the procurement of abortion of two women, was not unconstitutionally vague as to petitioner. State v. Bartlett, 128 Vt. 618, 270 A.2d 168, 1970 Vt. LEXIS 287 (1970).

If the conduct of petitioner for post-conviction relief, who had plead guilty to two statutory charges of procuring an abortion, was such that he could clearly tell that it was prohibited, whether the statute is broadly phrased and could mislead someone else is immaterial. State v. Bartlett, 128 Vt. 618, 270 A.2d 168, 1970 Vt. LEXIS 287 (1970).

Petitioner for post-conviction relief who had plead guilty to two charges of willfully assisting the procurement of an abortion had no standing to attack this section as unconstitutional on the ground that the phrase “unless the same is necessary to preserve her life” was subject to interpretation by a doctor and that this delegates a power to a directly involved individual in violation of the fourteenth amendment and violates the doctor’s constitutional rights. State v. Bartlett, 128 Vt. 618, 270 A.2d 168, 1970 Vt. LEXIS 287 (1970).

Accomplices.

The pregnant woman is regarded by the law as a victim, and not an accomplice. State v. Montifoire, 95 Vt. 508, 116 A. 77, 1922 Vt. LEXIS 163 (1922).

Person responsible for woman’s pregnancy, who took her to defendant’s office and paid for an illegal operation, was an accomplice, and his testimony was to be so considered. State v. Montifoire, 95 Vt. 508, 116 A. 77, 1922 Vt. LEXIS 163 (1922).

Application.

The prohibitory provisions of this section do not apply to the pregnant female; as to her, her personal rights have been left to her, and there is no legislative declaration saying that her own concerns for her personal integrity are in any way criminal or proscribed. Beecham v. Leahy, 130 Vt. 164, 287 A.2d 836, 1972 Vt. LEXIS 246 (1972).

Although this section avoids confrontation with the rights of a pregnant female, where it bars the medical aid such person seeks it is invalid and can not be resorted to by way of a criminal prosecution against the doctor. Beecham v. Leahy, 130 Vt. 164, 287 A.2d 836, 1972 Vt. LEXIS 246 (1972).

Burden of proof.

Burden was on state to prove that a miscarriage was not necessary to preserve the life of the woman. State v. Montifoire, 95 Vt. 508, 116 A. 77, 1922 Vt. LEXIS 163 (1922).

Charge to jury.

It was proper for trial court in its charge, to limit to its impeaching effect, evidence introduced by respondent of statement of woman that she was not able to help herself, and desired witness, a physician, to perform an abortion upon her, such evidence having been received without objection, or limitation, and these facts having no tendency to show that respondent did not perform operation as claimed by the state. State v. Bolton, 92 Vt. 157, 102 A. 489, 1917 Vt. LEXIS 306 (1917).

Effect of guilty plea.

Guilty plea to charge of willfully assisting the procuring of an abortion constituted an admission that the abortion was performed for a purpose other than saving the mother’s life, which established the criminal intent necessary to support his conviction. State v. Bartlett, 128 Vt. 618, 270 A.2d 168, 1970 Vt. LEXIS 287 (1970).

Elements of crime.

All that need be shown to warrant conviction is that respondent purposely did some of things prohibited intending thereby to procure miscarriage of a woman pregnant or supposed by him to be, and that such miscarriage was not necessary to save her life. State v. Montifoire, 95 Vt. 508, 116 A. 77, 1922 Vt. LEXIS 163 (1922).

Statute did not require an operation, or even a miscarriage. State v. Montifoire, 95 Vt. 508, 116 A. 77, 1922 Vt. LEXIS 163 (1922).

It was not essential to commission of offense of attempting to procure miscarriage of a woman pregnant with child that fetus should be alive at time attempt was made. State v. Howard, 32 Vt. 380, 1859 Vt. LEXIS 113 (1859).

State v. Howard, 32 Vt. 380, 1859 Vt. LEXIS 113 (1859).

Evidence.

If jury found as they might from evidence, that stories were invented by respondent to divert suspicion from himself, their introduction in evidence by him was circumstance tending to establish his guilt. State v. Marini, 106 Vt. 126, 170 A. 110, 1934 Vt. LEXIS 151 (1934).

Evidence, that at time of operation, woman was in good health, strong and robust, and was working was sufficient proof that operation was not necessary to preserve her life to take case to jury. State v. Montifoire, 95 Vt. 508, 116 A. 77, 1922 Vt. LEXIS 163 (1922).

Respondent’s knowledge of pregnancy of woman and intent with which medicine was given her could be proved by circumstantial evidence. State v. Montifoire, 95 Vt. 508, 116 A. 77, 1922 Vt. LEXIS 163 (1922).

Where the fact of a deceased party’s going to respondent’s house for purpose of having him procure an abortion upon her person, was material, declaration of such person as to her purpose in going there, made at the time of her departure for that place, was competent evidence as part of the res gestae. State v. Howard, 32 Vt. 380, 1859 Vt. LEXIS 113 (1859).

Purpose.

The purpose of this section is said to be for the protection of the pregnant female, protection against interference with her condition, real or supposed, by outside parties, and insofar as this prevents unskilled and untrained persons from acting in an area properly medical, the statute is valid and necessary. Beecham v. Leahy, 130 Vt. 164, 287 A.2d 836, 1972 Vt. LEXIS 246 (1972).

Sufficiency of information.

Information charging commission of offense in two ways in alternative or disjunctive form, as that respondent “did . . . employ or cause to be employed certain means, to wit: by inserting or causing to be inserted a certain instrument or instruments” with intent to procure miscarriage of a pregnant woman, in violation of this section did not reasonably indicate the exact offense so as to enable respondent to make intelligent preparation for his defense, and was fatally defective both at common law and under ch. I, art. 10, of the constitution of Vermont. State v. Rouillard, 107 Vt. 487, 180 A. 890, 1935 Vt. LEXIS 203 (1935).

Words “the same” referred to miscarriage, and an averment that the means were not necessary to preserve the woman’s life, was not equivalent to an averment that the miscarriage was not necessary. State v. Stevenson, 68 Vt. 529, 35 A. 470, 1896 Vt. LEXIS 111 (1896).

Since section contains excepting clause: “unless the same is necessary to preserve her life,” indictment must negative the exception. State v. Stokes, 54 Vt. 179, 1881 Vt. LEXIS 88 (1881).

ANNOTATIONS.

Annotations From Former § 104

Sufficiency of indictment.

Indictment should allege manner in which print and writing was made public or circulated. State v. Fiske, 66 Vt. 434, 29 A. 633, 1894 Vt. LEXIS 115 (1894).

Law Reviews —

Abortion choice and the law in Vermont, see 7 Vt. L. Rev. 281, 294 (1982).

Chapter 5. Adultery and Bigamy

§§ 201, 202. Repealed. 1981, No. 223 (Adj. Sess.), § 24.

History

Former §§ 201, 202. Former § 201, relating to penalty for adultery, was derived from V.S. 1947, § 8466; P.L. § 8600; G.L. § 7005; P.S. § 5881; V.S. § 5055; R.L. § 4239; G.S. 117, § 1; R.S. 99, § 1; 1818, p. 11; R. 1797, p. 164, § 21; R. 1787, p. 20, and amended by 1971, No. 199 (Adj. Sess.), § 15.

Former § 202, relating to adultery by married man and unmarried woman, was derived from V.S. 1947, § 8467; P.L. § 8601; G.L. § 7006; P.S. § 5882; V.S. § 5056; R.L. § 4240; G.S. 117, § 2; R.S. 99, § 2 and 1818, p. 11.

§§ 203, 204. Repealed. 1979, No. 152 (Adj. Sess.).

History

Former §§ 203, 204. Former § 203, relating to persons found in bed together, was derived from V.S. 1947, § 8468; P.L. § 8602; G.L. § 7007; P.S. § 5883; V.S. § 5057; R.L. § 4241; G.S. 117, § 3; R.S. 90, § 3; 1826, No. 12 ; 1818, p. 11; R. 1797, p. 166, § 24; R. 1778, p. 20 and amended by 1971, No. 199 (Adj. Sess.), § 15.

Former § 204, relating to parties to divorce or annulled marriage, was derived from V.S. 1947, § 8469; P.L. § 8603; G.L. § 7008; P.S. § 5884; V.S. § 5058; R.L. § 4242; G.S. 117, § 4; R.S. 99, § 4; 1826, No. 12 ; 1818, p. 11; R. 1797, p. 164, § 22; R. 1787, p. 21.

§ 205. Intermarriage of or fornication by persons prohibited to marry.

Persons between whom marriages are prohibited by the laws of this State who intermarry or commit fornication with each other shall be imprisoned not more than five years or fined not more than $1,000.00, or both.

HISTORY: Amended 1981, No. 223 (Adj. Sess.), § 16.

History

Source.

V.S. 1947, § 8473. P.L. § 8607. G.L. § 7012. P.S. § 5888. V.S. § 5062. R.L. § 4246. G.S. 117, § 9. R.S. 99, § 7. 1818, p. 13. R. 1797, p. 166, § 25. R. 1787, p. 94.

Amendments

—1981 (Adj. Sess.). Substituted “imprisoned not more than five years or fined not more than $1,000.00, or both” for “shall be punished as in case of adultery”.

CROSS REFERENCES

Admissibility of out of court statements of children 10 years of age or under who are victims of sexual offenses or delinquent acts, see Rule 804a, Vermont Rules of Evidence.

Admissibility of testimony recorded or televised from outside courtroom of minor victims of sexual offenses or delinquent acts, see Rule 807, Vermont Rules of Evidence.

Appointment of guardians ad litem for minor victims of sexual offenses or delinquent acts, see Rule 44.1, Vermont Rules of Criminal Procedure.

Notification of defendant of intent to offer hearsay statement of minor victim of sexual offense or delinquent act, see Rule 26, Vermont Rules of Criminal Procedure.

ANNOTATIONS

Fornication.

Fornication was not a crime unless committed by persons between whom marriage was prohibited. State v. Manley, 82 Vt. 556, 74 A. 231, 1909 Vt. LEXIS 327 (1909).

Incest.

It was not necessary in an indictment charging incest to aver that respondent had knowledge of relationship existing between himself and particeps criminis. State v. Wyman, 59 Vt. 527, 8 A. 900, 1887 Vt. LEXIS 115 (1887); State v. Dana, 59 Vt. 614, 10 A. 727, 1887 Vt. LEXIS 162 (1887).

Where respondent was charged with committing incest with his niece and she testified against him, rule as to corroborative evidence merely required such confirmation of the particulars of the accomplice’s story as convinced jury of its truth. State v. Dana, 59 Vt. 614, 10 A. 727, 1887 Vt. LEXIS 162 (1887).

Law Reviews —

Marriage status, law governing, see 19 B.U.L. Rev. 360 (1939).

§ 206. Bigamy.

A person having a husband or wife living who marries another person, or continues to cohabit with such second husband or wife in this State, shall be imprisoned not more than five years. This section shall not extend to a person whose husband or wife has been continually beyond the sea, or out of the State for seven consecutive years, the party marrying again not knowing the other to be living within that time; or to a person whose former marriage has been avoided by divorce or sentence of nullity, or was contracted under the age of consent and not afterwards assented to.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Source.

V.S. 1947, § 8470. P.L. § 8604. G.L. § 7009. P.S. § 5885. V.S. § 5059. R.L. § 4243. G.S. 117, §§ 5, 6. R.S. 99, §§ 5, 6. 1818, p. 12. R. 1797, p. 165, § 23. R. 1787, p. 21.

Amendments

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Conflict of laws.

Provision of New York Code prohibiting subsequent marriage of a libellee in divorce proceedings, applied only to persons divorced in that state, and did not render invalid marriage there of a person divorced in this state. State v. Bentley, 75 Vt. 163, 53 A. 1068, 1903 Vt. LEXIS 108 (1903).

Elements of crime.

If A married B, she having another husband then living, and subsequently married C, marriage with C is not bigamous, for A never was husband of B. State v. Sherwood, 68 Vt. 414, 35 A. 352, 1896 Vt. LEXIS 95 (1896).

Evidence.

Upon a trial for bigamy, evidence that person by whom a marriage ceremony was performed was reputed to be, and that he acted as a magistrate or minister, was admissible, and was sufficient prima facie proof of his official or ministerial character. State v. Abbey, 29 Vt. 60, 1856 Vt. LEXIS 142 (1856).

Intent.

A person who, having a wife living, married another woman, in circumstances not within any exception of this section, was guilty of bigamy although at time of his second marriage he honestly believed, upon reasonable grounds, that his wife was dead. State v. Ackerly, 79 Vt. 69, 64 A. 450, 1906 Vt. LEXIS 104 (1906).

Sufficiency of indictment.

It was not necessary to allege that respondent was not within any of exceptions or exemptions specified in this section. State v. Abbey, 29 Vt. 60, 1856 Vt. LEXIS 142 (1856).

§ 207. Proof of respondent’s civil marriage.

In prosecutions for crimes and penalties where it is necessary to prove the fact of the civil marriage of the respondent, acts of cohabitation by the respondent with the supposed husband or wife, and other acts, admissions, and declarations of the respondent tending to prove such marriage shall be admitted in evidence as competent testimony.

HISTORY: Amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Source.

V.S. 1947, § 8471. P.L. § 8605. G.L. § 7010. P.S. § 5886. V.S. § 5060. R.L. § 4244. G.S. 117, § 7. 1856, No. 12 .

ANNOTATIONS

Circumstantial evidence.

Marriage in fact may be proved by circumstantial evidence. State v. Sherwood, 68 Vt. 414, 35 A. 352, 1896 Vt. LEXIS 95 (1896).

Presumption from cohabitation.

If a marriage in fact is proved, another marriage set up to defeat it must also be proved in fact, and presumption arising from cohabitation and repute will not be sufficient. State v. Sherwood, 68 Vt. 414, 35 A. 352, 1896 Vt. LEXIS 95 (1896).

This section, providing that in trials for bigamy marriage may be proved by acts of cohabitation, etc., applied to marriage of respondent, and not to other marriages which may incidentally be drawn in question. State v. Sherwood, 68 Vt. 414, 35 A. 352, 1896 Vt. LEXIS 95 (1896).

§ 208. Alleging civil marriage in bigamy prosecution.

In prosecutions for bigamy it shall be sufficient to allege in the information or indictment that, at the time of the second civil marriage, the respondent had a wife or husband living, without specifying the time or place of the former marriage or the name of the former husband or wife.

HISTORY: Amended 2009, No. 3 , § 12a, eff. Sept. 1, 2009.

History

Source.

V.S. 1947, § 8472. P.L. § 8606. G.L. § 7011. P.S. § 5887. V.S. § 5061. R.L. § 4245. G.S. 117, § 8. 1858, No. 16 .

Chapter 7. Advertisements

§ 301. Posting utility poles.

A person who paints or posts a sign, advertisement, or notice on a telegraph, telephone, or electric light pole shall be fined $5.00 for each offense.

History

Source.

V.S. 1947, § 8395. P.L. § 8532. G.L. § 6948. P.S. § 5834. V.S. § 5014. 1890, No. 44 , §§ 3, 4. 1882, No. 75 , §§ 3, 4.

CROSS REFERENCES

Outdoor advertising, regulation of, see ch. 93 of Title 9 and ch. 21 of Title 10.

§ 302. Advertising littering streets and highways.

A person who by himself, herself, servant, or agent, advertises an entertainment or occupation, by throwing posters, bills, or advertising sheets of any kind, loose in a public street or highway, shall be fined not more than $50.00 nor less than $5.00, with costs.

History

Source.

V.S. 1947, § 8396. P.L. § 8533. G.L. § 4658. P.S. § 4067. V.S. § 3525. 1886, No. 19 , § 2.

§ 303. Posting on private property.

A person who advertises his or her wares or occupations, by painting or posting notice of the same on fences or other private property, or on rocks or other natural objects, without leave of the owner, shall be fined $10.00.

History

Source.

V.S. 1947, § 8398. P.L. § 8535. G.L. § 6951. P.S. § 5837. V.S. § 5016. R.L. § 4202. 1864, No. 28 .

§§ 304-307. Repealed. 1979, No. 152 (Adj. Sess.).

History

Former §§ 304-307. Former § 304, relating to advertisement of liquor and tobacco in public places, was derived from V.S. 1947, § 8512; P.L. § 8647; 1933, No. 157 , § 8288; G.L. § 7043 and 1910, No. 226 .

Former § 305, relating to advertisements for cure of sexual disease, disabilities or habits, was derived from V.S. 1947, § 8583; P.L. § 8717 and 1921, No. 213 , § 1.

Former § 306, relating to exceptions to advertisements for cure of sexual disease, disabilities or habits, was derived from V.S. 1947, § 8584; P.L. § 8718 and 1921, No. 213 , § 2.

Former § 307, relating to penalties for advertisements for cure of sexual disease, disabilities or habits, was derived from V.S. 1947, § 8585; P.L. § 8719 and 1921, No. 213 , § 3.

Chapter 8. Humane and Proper Treatment of Animals

History

Revision note—

This chapter, which was originally enacted as chapter 10 of this title, was redesignated to conform to the classification scheme of V.S.A.

CROSS REFERENCES

Humane slaughter of livestock, see 6 V.S.A. ch. 201.

Regulation of animal welfare, see 20 V.S.A. ch. 194.

Subchapter 1. Cruelty to Animals

§ 351. Definitions.

As used in this chapter:

  1. “Animal” means all living sentient creatures, not human beings.
  2. “Secretary” means the Secretary of Agriculture, Food and Markets.
  3. “Horse” means the entire family of Equidae.
  4. “Humane officer” or “officer” means:
    1. any enforcement officer as defined in 23 V.S.A. § 4(11)(A) or investigator employed by the Office of the Attorney General or State’s Attorney; or
    2. an individual who has received the training required by section 356 of this title who is:
      1. a designated humane society employee; or
      2. an animal control officer appointed by the legislative body of a municipality who is authorized by the legislative body to perform the duties and functions of a humane officer.
  5. “Humane society” or “society for prevention of cruelty to animals” means a private, nonprofit animal care facility registered and in good standing with the Vermont Secretary of State.
  6. “Local board of health” means the town or city health officer and the selectboard members or aldermen.
  7. “Necessary medical attention” shall include medical or surgical treatment for injury, disease, excessive parasitism, dehydration, malnutrition, pain, or impaired locomotive function.
  8. “Person” means any individual, firm, partnership, or corporation, or authorized agent or representative of a person, partnership, or corporation.
  9. “Sanitation” means the maintenance of clean conditions for indoor and outdoor enclosures to minimize health hazards, including periodic cleanings to remove excretions or other waste materials, dirt, and trash.
  10. “Torture” or “torment” means omission, neglect, or an act by an animal owner or other person, whereby physical pain, suffering, or death is caused or permitted to be caused to an animal.
  11. “Livestock” means cattle, bison, horses, sheep, goats, swine, Cervidae, ratites, and camelids.
  12. “Poultry” means meat and egg producing chickens, exhibition (fancy) chickens, turkeys, domestic ducks, geese, pheasants, chicken partridge, and cotarnix quail.
  13. “Livestock and poultry husbandry practices” means the raising, management and using of animals to provide humans with food, fiber, or transportation in a manner consistent with:
    1. husbandry practices recommended for the species by fully accredited agricultural colleges and the U.S. Department of Agriculture Extension Service;
    2. husbandry practices modified for the species to conform to the Vermont environment and terrain; and
    3. husbandry practices that minimize pain and suffering.
  14. “Agricultural or sporting association” means an organization or association determined by the Secretary.
  15. “Living space” means any cage, crate, or other structure used to confine an animal that serves as its principal, primary housing and that provides protection from the elements. Living space does not include a structure, such as a doghouse, in which an animal is not confined, or a cage, crate, or other structure in which the animal is temporarily confined.
  16. “Adequate food” means food that is not spoiled or contaminated and is of sufficient nutritional content to meet the normal daily requirements for the condition and size of the animal and the environment in which it is kept. An animal shall be fed or have food available at least once each day, unless a licensed veterinarian instructs otherwise or withholding food is in accordance with accepted veterinary practices or livestock and poultry husbandry practices.
  17. “Adequate water” means potable water that is either accessible to the animal at all times or is provided at suitable intervals for the species and in sufficient quantity for the health of the animal. In no event shall the interval when water is not provided exceed 24 hours. Snow or ice is not an adequate water source unless provided in accordance with livestock and poultry husbandry practices.
  18. [Repealed.]
  19. “Enclosure” means any structure, fence, device, or other barrier used to restrict an animal or animals to a limited amount of space.
  20. “Livestock guardian dog” means a purpose-bred dog that is:
    1. specifically trained to live with livestock without causing them harm while repelling predators;
    2. being used to live with and guard livestock; and
    3. acclimated to local weather conditions.
  21. “Sexual conduct” means:
    1. any act between a person and animal that involves contact between the mouth, sex organ, or anus of a person and the mouth, sex organ, or anus of an animal; or
    2. without a bona fide veterinary or animal husbandry purpose, the insertion, however slight, of any part of a person’s body or of any instrument, apparatus, or other object into the vaginal or anal opening of an animal.
  22. “Adequate constructed shelter” means a well-drained and structurally sound building with a waterproof roof that is of sufficient size to provide a windbreak and protection from exposure to prevailing winds, rain, hail, sleet, snow, and sun and that provides enough space to accommodate at one time all livestock and animals comfortably. The building opening size and height shall, at a minimum, allow six inches of clearance above the largest animal’s ears when the animal is standing in a normal position, and the clearance shall be maintained at that level even with manure and litter buildup.
  23. “Adequate natural shelter” means a natural structure or formation, which may include a stand of trees that:
    1. is a well-drained area of sufficient size to provide a windbreak and protection from exposure to prevailing winds, rain, hail, sleet, sun, and snow; and
    2. provides enough space to accommodate at one time all livestock or animals maintained out-of-doors in the area.
  24. “Adequate ventilation” means that ventilation in an enclosed or confined area shall be sufficient to control excessive ambient temperatures and humidity and to prevent the accumulation of toxic gases, such as ammonia.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 1997, No. 130 (Adj. Sess.), § 4; 2003, No. 42 , § 2, eff. May 27, 2003; 2003, No. 120 (Adj. Sess.), § 1; 2009, No. 121 (Adj. Sess.), § 4; 2013, No. 161 (Adj. Sess.), § 72; 2013, No. 162 (Adj. Sess.), § 1; 2017, No. 58 , § 1; 2017, No. 62 , § 10; 2019, No. 116 (Adj. Sess.), § 1; 2021, No. 38 , § 1.

History

Revision note

—2013. In subdiv. (7), deleted “but not limited to” following “include” in accordance with 2013, No. 5 , § 4.

—1989 (Adj. Sess.). In subdiv. (2), substituted “commissioner of agriculture, food and markets” for “commissioner of agriculture” for purposes of conformity with 1989, No. 256 (Adj. Sess.), § 10(a).

Editor’s note—

The text of this section is based on the harmonization of two amendments. During the 2017 session, this section was amended twice, by Act Nos. 58 and 62, resulting in two versions of this section. In order to reflect all of the changes enacted by the legislature during the 2017 session, the text of Act Nos. 58 and 62 were merged to arrive at a single version of this section. The changes which each of the amendments made are described in amendment notes set out below.

Amendments

—2021. Subdiv. (4): Amended generally.

Subdiv. (5): Substituted “a private, nonprofit animal care facility registered and in good standing with the Vermont Secretary of State” for “the Vermont Humane Federation, Inc., or its successor, or any incorporated humane society that, through its agents, has the lawful authority to interfere with acts of cruelty to animals”.

—2019 (Adj. Sess.). Subdiv. (7): Inserted “or surgical”, deleted “illness,” following “treatment for”, inserted “dehydration, malnutrition, pain” and substituted “impaired locomotive function” for “malformed or overgrown hoof”.

Subdiv. (13)(A): Inserted “fully accredited”.

Subdiv. (16): Substituted “nutritional content” for “quantity and quality” in the first sentence.

Subdiv. (18): Repealed.

Subdivs. (22)-(24): Added.

—2017. Subdiv. (15): Act No. 58 inserted “and that provides protection from the elements” at the end of the first sentence.

Subdiv. (16): Act No. 58 substituted “veterinary” for “agricultural or veterinarian” preceding “practices” in the second sentence; and added “or livestock and poultry husbandry practices”.

Subdiv. (17): Act No. 58 amended generally.

Subdivs. (19)-(20): Added by Act No. 58.

Subdiv. (21): Added by Act No. 62.

—2013 (Adj. Sess.). Subdiv. (4): Act No. 162 deleted “, elected animal control officer,” following “employee, or agent” and made minor stylistic changes.

Subdiv. (6): Act No. 161 substituted “Selectboard members” for “selectmen”.

—2009 (Adj. Sess.) Subdiv. (4): Inserted “elected animal control officer, animal control officer appointed by the legislative body of a municipality” preceding “local”.

—2003 (Adj. Sess.). Subdivs. (15)-(18): Added.

—2003. Subdiv. (2): Substituted “Secretary” for “Commissioner” and “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets”.

Subdiv. (14): Substituted “secretary” for “commissioner”.

—1997 (Adj. Sess.). Subdivs. (11)-(14): Added.

§ 351a. Purpose of subchapter.

The purpose of this subchapter is to prevent cruelty to animals. In implementing this subchapter, enforcement officers are encouraged to educate the public on requirements of the subchapter and, when appropriate, to seek voluntary resolution of violations.

HISTORY: Added 1997, No. 130 (Adj. Sess.), § 5.

§ 351b. Scope of subchapter.

This subchapter shall not apply to:

  1. activities regulated by the Department of Fish and Wildlife pursuant to 10 V.S.A. Part 4, including the act of destroying feral swine in accordance with 10 V.S.A. § 4709(f) ;
  2. scientific research governed by accepted procedural standards subject to review by an institutional animal care and use committee;
  3. livestock and poultry husbandry practices for raising, management, and use of animals;
  4. veterinary medical or surgical procedures; and
  5. the killing of an animal as provided by 20 V.S.A. §§ 3809 and 3545.

HISTORY: Added 1997, No. 130 (Adj. Sess.), § 6; amended 2019, No. 129 (Adj. Sess.), § 22.

History

Amendments

—2019 (Adj. Sess.). Subdiv. (1): Inserted “, including the act of destroying feral swine in accordance with 10 V.S.A. § 4709(f) ”.

§ 352. Cruelty to animals.

A person commits the crime of cruelty to animals if the person:

  1. Intentionally kills or attempts to kill any animal belonging to another person without first obtaining legal authority or consent of the owner.
  2. Overworks, overloads, tortures, torments, abandons, administers poison to, cruelly harms or mutilates an animal or exposes a poison with intent that it be taken by an animal.
  3. Ties, tethers, or restrains an animal, either a pet or livestock, in a manner that is inhumane or is detrimental to its welfare. Livestock and poultry husbandry practices are exempted.
  4. Deprives an animal that a person owns, possesses, or acts as an agent for of adequate food, water, shelter, rest, sanitation, or necessary medical attention or transports an animal in overcrowded vehicles.
    1. Owns, possesses, keeps, or trains an animal engaged in an exhibition of fighting; possesses, keeps, or trains any animal with intent that it be engaged in an exhibition of fighting; or permits any such act to be done on premises under his or her charge or control. (5) (A) Owns, possesses, keeps, or trains an animal engaged in an exhibition of fighting; possesses, keeps, or trains any animal with intent that it be engaged in an exhibition of fighting; or permits any such act to be done on premises under his or her charge or control.
    2. Owns, possesses, ships, transports, delivers, or keeps a device, equipment, or implement for the purpose of training or conditioning an animal for participation in animal fighting or enhancing an animal’s fighting capability.
  5. Acts as judge or spectator at events of animal fighting or bets or wagers on the outcome of such fight.
  6. As poundkeeper, officer, or agent of a humane society or as an owner or employee of an establishment for treatment, board, or care of an animal, knowingly receives, sells, transfers, or otherwise conveys an animal in his or her care for the purpose of research or vivisection.
  7. Intentionally torments or harasses an animal owned or engaged by a police department or public agency of the State or its political subdivisions or interferes with the lawful performance of a police animal.
  8. Knowingly sells, offers for sale, barters, or displays living baby chicks, ducklings, or other fowl that have been dyed, colored, or otherwise treated so as to impart to them an artificial color or fails to provide poultry with proper brooder facilities.
  9. Uses a live animal as bait or lure in a race, game, or contest or in training animals in a manner inconsistent with 10 V.S.A. Part 4 or the rules adopted thereunder.
    1. Engages in sexual conduct with an animal. (11) (A) Engages in sexual conduct with an animal.
    2. Possesses, sells, transfers, purchases, or otherwise obtains an animal with the intent that it be used for sexual conduct.
    3. Organizes, promotes, conducts, aids, abets, or participates in as an observer an act involving any sexual conduct with an animal.
    4. Causes, aids, or abets another person to engage in sexual conduct with an animal.
    5. Permits sexual conduct with an animal to be conducted on premises under his or her charge or control.
    6. Advertises, offers, or accepts the offer of an animal with the intent that it be subject to sexual conduct in this State.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 1997, No. 130 (Adj. Sess.), § 7; 2003, No. 120 (Adj. Sess.), § 2; 2015, No. 53 , § 1; 2017, No. 62 , § 10; 2017, No. 112 (Adj. Sess.), § 1, eff. May 1, 2018.

History

Amendments

—2017 (Adj. Sess.). Subdiv. (2): Substituted “harms” for “beats” following “cruelly”.

Subdiv. (4): Substituted “that” for “which” following “an animal”.

Subdiv. (5)(A): Deleted “or” following “exhibition of fighting” and following “charge or control”.

Subdiv. (9): Substituted “that” for “which” following “or other fowl”.

Subdiv. (11)(E): Deleted “or” following “charge or control”.

—2017. Subdiv. (10): Substituted “10 V.S.A. Part 4” for “Part 4 of Title 10” following “inconsistent with”; and added a semicolon.

Subdiv. (11): Added by Act No. 62.

—2015. Subdiv. (5): Added the subdiv. (A) designation and subdiv. (B).

—2003 (Adj. Sess.). Subdiv. (2): Inserted “or” preceding “exposes”.

Subdiv. (4): Substituted “,” for “or” preceding “sanitation”.

—1997 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Intent.

Because the punishment for a violation of subsecs. (3) and (4) is not severe and the subsections do not include an intent element, in contrast to other subsections, the subsections are strict liability offenses. State v. Gadreault, 171 Vt. 534, 758 A.2d 781, 2000 Vt. LEXIS 188 (2000) (mem.).

Probable cause.

In an animal cruelty case, even if the warrantless search of defendants’ home was unconstitutional, an officer’s affidavit in support of the search warrant included sufficient other evidence to establish probable cause, as both a contractor and defendants’ landlord stated that the animals were kept for long periods in extremely cramped conditions and in their own feces and urine, and that at least one dog was losing fur, and their account was corroborated by a video the landlord took. State v. Ferguson, 2020 VT 39, 212 Vt. 276, 236 A.3d 207, 2020 Vt. LEXIS 42 (2020).

Cited.

Cited in State v. Eldredge, 2006 VT 80, 180 Vt. 278, 910 A.2d 816, 2006 Vt. LEXIS 163 (2006).

§ 352a. Aggravated cruelty to animals.

A person commits the crime of aggravated cruelty to animals if the person:

  1. kills an animal by intentionally causing the animal undue pain or suffering;
  2. intentionally, maliciously, and without just cause tortures, mutilates, or cruelly beats an animal; or
  3. intentionally injures or kills an animal that is in the performance of official duties while under the supervision of a law enforcement officer.

HISTORY: Added 1997, No. 130 (Adj. Sess.), § 8; amended 2003, No. 120 (Adj. Sess.), § 3; 2015, No. 118 (Adj. Sess.), § 6.

History

Amendments

—2015 (Adj. Sess.). Subdiv. (3): Added.

—2003 (Adj. Sess.). Section amended generally.

§ 352b. Rules; affirmative defense.

  1. An enforcement officer implementing the provisions of section 352 or 352a of this title shall be guided by rules established by the Secretary.
  2. Except as provided in subsection (c) of this section, an affirmative defense to prosecution under section 352 or 352a of this title may be raised when:
    1. except for vivisection or research under subdivision 352(7) of this title, the defendant was a veterinarian whose conduct conformed to accepted veterinary practice for the area, or was a scientist whose conduct was a part of scientific research governed by accepted procedural standards subject to review by an institutional care and use committee;
    2. the defendant’s conduct was designed to control or eliminate rodents, ants, or other common pests on the defendant’s own property;
    3. the defendant was a person appropriately licensed to utilize pesticides under 6 V.S.A. chapter 87;
    4. the defendant humanely euthanized any animal as a representative of a duly organized humane society, animal shelter, or town pound according to rules of this subchapter, or as a veterinarian destroying animals under 20 V.S.A. chapter 193 or 20 V.S.A. §§ 3511 and 3513; or
    5. a State agency was implementing a rabies control program.
  3. An affirmative defense to a charge of abandonment under section 352 of this title shall not be recognized where a person abandons an animal at or near an animal shelter or veterinary clinic, farm, or other place of shelter, without making reasonable arrangements for the care of the animal.
  4. The authority to enforce this chapter shall not be construed in a manner inconsistent with the animal control or disease control eradication programs in Title 6, or 20 V.S.A. chapters 191, 193, 194, and 195 or the provisions of 10 V.S.A. Part 4, or the rules adopted thereunder.

HISTORY: Added 1997, No. 130 (Adj. Sess.), § 9; amended 2003, No. 42 , § 2, eff. May 27, 2003.

History

Amendments

—2003. Subsec. (a): Substituted “secretary” for “commissioner” at the end of the subsec.

§ 353. Degree of offense; sentencing upon conviction.

  1. Penalties.
    1. Except as provided in subdivision (3), (4), or (5) of this subsection, cruelty to animals under section 352 of this title shall be punishable by a sentence of imprisonment of not more than one year or a fine of not more than $2,000.00, or both. Second and subsequent convictions shall be punishable by a sentence of imprisonment of not more than two years or a fine of not more than $5,000.00, or both.
    2. Aggravated cruelty under section 352a of this title shall be punishable by a sentence of imprisonment of not more than five years or a fine of not more than $5,000.00, or both. Second and subsequent offenses shall be punishable by a sentence of imprisonment of not more than ten years or a fine of not more than $7,500.00, or both.
    3. An offense committed under subdivision 352(5) or (6) of this title shall be punishable by a sentence of imprisonment of not more than five years or a fine of not more than $5,000.00, or both.
      1. Except as provided in subdivision (B) of this subdivision (4), a person found in violation of subdivision 352(3), (4), or (9) of this title pursuant to this subdivision shall be imprisoned not more than one year or fined not more than $2,000.00, or both. Second and subsequent convictions shall be punishable by a sentence of imprisonment of not more than two years or a fine of not more than $5,000.00, or both. (4) (A) Except as provided in subdivision (B) of this subdivision (4), a person found in violation of subdivision 352(3), (4), or (9) of this title pursuant to this subdivision shall be imprisoned not more than one year or fined not more than $2,000.00, or both. Second and subsequent convictions shall be punishable by a sentence of imprisonment of not more than two years or a fine of not more than $5,000.00, or both.
      2. In lieu of a criminal citation or arrest, a law enforcement officer may issue a civil citation to a person who violates subdivision 352(3), (4), or (9) of this title if the person has not been previously adjudicated in violation of this chapter. A person adjudicated in violation of subdivision 352(3), (4), or (9) of this title pursuant to this subdivision shall be assessed a civil penalty of not more than $500.00. At any time prior to the person admitting the violation and paying the assessed penalty, the State’s Attorney may withdraw the complaint filed with the Judicial Bureau and file an information charging a violation of subdivision 352(3), (4), or (9) of this title in the Criminal Division of the Superior Court.
      3. Nothing in this subdivision shall be construed to require that a civil citation be issued prior to a criminal charge of violating subdivision 352(3), (4), or (9) of this title.
    4. A person who violates subdivision 352(1) of this title by intentionally killing or attempting to kill an animal belonging to another or subdivision 352(2) of this title by torturing, administering poison to, or cruelly harming or mutilating an animal shall be imprisoned not more than two years or fined not more than $5,000.00, or both.
  2. In addition to any other sentence the court may impose, the court may require a defendant convicted of a violation under section 352 or 352a of this title to:
    1. Forfeit any rights to the animal subjected to cruelty, and to any other animal, except livestock or poultry owned, possessed, or in the custody of the defendant.
    2. Repay the reasonable costs incurred by any person, municipality or agency for providing care for the animal prior to judgment. If the court does not order a defendant to pay all the applicable costs incurred or orders only partial payment, it shall state on the record the reasons for that action.
    3. Forfeit any future right to own, possess, or care for any animal for a period that the court deems appropriate.
    4. Participate in available animal cruelty prevention programs or educational programs, or both, or obtain psychiatric or psychological counseling, within a reasonable distance from the defendant’s residence. If a juvenile is adjudicated delinquent under section 352 or 352a of this title, the court may order the juvenile to undergo a psychiatric or psychological evaluation and to participate in treatment that the court determines to be appropriate after due consideration of the evaluation. The court may impose the costs of such programs or counseling upon the defendant when appropriate.
    5. Permit periodic unannounced visits for a period up to one year by a humane officer to inspect the care and condition of any animal permitted by the court to remain in the care, custody, or possession of the defendant. Such period may be extended by the court upon motion made by the State.
  3. Upon an order of forfeiture of an animal under this section or section 354 of this title, the court shall order custody of the animal remanded to a humane society or other individual deemed appropriate by the court, for further disposition in accordance with accepted practices for humane treatment of animals. A transfer of rights under this section constitutes a transfer of ownership and shall not constitute or authorize any limitation upon the right of the humane society, individual, or other entity, to whom rights are granted to dispose of the animal.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 1997, No. 130 (Adj. Sess.), § 10; 2003, No. 120 (Adj. Sess.), § 4; 2007, No. 51 , § 20; 2009, No. 154 , § 238; 2013, No. 67 , § 12; 2017, No. 62 , § 10; 2017, No. 112 (Adj. Sess.), § 1a, eff. May 1, 2018.

History

Amendments

—2017 (Adj. Sess.). Subdiv. (a)(5): Substituted “harming” for “beating” preceding “or mutilating”.

—2017. Subdiv. (a)(1): Substituted “(3), (4), or (5)” for “(3) or (4)” following “subdivision” in the first sentence.

Subdiv. (a)(2): Substituted “five years” for “three years” following “not more than” in the first sentence; and substituted “ten years” for “five years” following “not more than” in the second sentence.

Subdiv. (a)(5): Added.

—2013. Substituted “In lieu of a criminal citation or arrest, a” for “A” and “may” for “shall” in the first sentence of subdiv. (a)(4)(B) and added subdiv. (a)(4)(C).

—2009 (Adj. Sess.) In subdiv. (a)(4)(B) substituted “criminal division of the superior court” for “district court” at the end of the last sentence.

—2007. Subsec. (a): Inserted “or (4)” following “subdivision (3)”.

Subdiv. (a)(4): Added.

—2003 (Adj. Sess.). Subdiv. (b)(4): Added the second sentence.

—1997 (Adj. Sess.). Deleted “; appeal” from the end of the catchline and rewrote the whole section, which included adding subdivs. (b)(3) through (b)(5) and deleting a requirement that defendant give security when appealing a forfeiture.

ANNOTATIONS

Costs.

Following defendant’s conviction of cruelty to animals, not only did the trial court not have to determine defendant’s ability to pay prior to ordering her to pay reasonable costs, it had no discretion to award any amount less than reasonable costs. The only discretion allowed to the trial court was to determine whether the claimed costs were reasonable. State v. Eldredge, 2006 VT 80, 180 Vt. 278, 910 A.2d 816, 2006 Vt. LEXIS 163 (2006).

§ 354. Enforcement; possession of abused animal; searches and seizures; forfeiture.

  1. The Secretary of Agriculture, Food and Markets shall be consulted prior to any enforcement action brought pursuant to this chapter that involves livestock and poultry. Law enforcement may consult with the Secretary in person or by electronic means, and the Secretary shall assist law enforcement in determining whether the practice or animal condition, or both, represent acceptable livestock or poultry husbandry practices.
  2. Any humane officer as defined in section 351 of this title may enforce this chapter. As part of an enforcement action, a humane officer may seize an animal being cruelly treated in violation of this chapter.
    1. Voluntary surrender.   A humane officer may accept animals voluntarily surrendered by the owner anytime during the cruelty investigation. The humane officer shall have a surrendered animal examined and assessed within 72 hours by a veterinarian licensed to practice in the State of Vermont.
    2. Search and seizure using a search warrant.   A humane officer having probable cause to believe an animal is being subjected to cruel treatment in violation of this subchapter may apply for a search warrant pursuant to the Vermont Rules of Criminal Procedure to authorize the officer to enter the premises where the animal is kept and seize the animal. The application and affidavit for the search warrant shall be reviewed and authorized by an attorney for the State when sought by an officer other than an enforcement officer defined in 23 V.S.A. § 4(11) . A veterinarian licensed to practice in Vermont must accompany the humane officer during the execution of the search warrant.
    3. Seizure without a search warrant.   If the humane officer witnesses a situation in which the humane officer determines that an animal’s life is in jeopardy and immediate action is required to protect the animal’s health or safety, the officer may seize the animal without a warrant. The humane officer shall immediately take an animal seized under this subdivision to a licensed veterinarian for medical attention to stabilize the animal’s condition and to assess the health of the animal.
  3. A humane officer shall provide suitable care at a reasonable cost for an animal seized under this section, and have a lien on the animal for all expenses incurred. A humane officer may arrange for the euthanasia of a severely injured, diseased, or suffering animal upon the recommendation of a licensed veterinarian. A humane officer may arrange for euthanasia of an animal seized under this section when the owner is unwilling or unable to provide necessary medical attention required while the animal is in custodial care or when the animal cannot be safely confined under standard housing conditions. An animal not destroyed by euthanasia shall be kept in custodial care and provided with necessary medical care until final disposition of the criminal charges except as provided in subsections (d) through (h) of this section. The custodial caregiver shall be responsible for maintaining the records applicable to all animals seized, including identification, residence, location, medical treatment, and disposition of the animals.
  4. If an animal is seized under this section, the State may institute a civil proceeding for forfeiture of the animal in the territorial unit of the Criminal Division of the Superior Court where the offense is alleged to have occurred. The proceeding shall be instituted by a motion for forfeiture if a criminal charge has been filed or a petition for forfeiture if no criminal charge has been filed, which shall be filed with the court and served upon the animal’s owner. The civil forfeiture proceeding is intended to run independently from any criminal prosecution and shall not be delayed pending disposition of any criminal proceeding.
    1. A preliminary hearing shall be held within 21 days of institution of the civil forfeiture proceeding. If the defendant requests a hearing on the merits, the court shall schedule a final hearing on the merits to be held within 21 days of the date of the preliminary hearing. Time limits under this subsection shall not be construed as jurisdictional. (e) (1) A preliminary hearing shall be held within 21 days of institution of the civil forfeiture proceeding. If the defendant requests a hearing on the merits, the court shall schedule a final hearing on the merits to be held within 21 days of the date of the preliminary hearing. Time limits under this subsection shall not be construed as jurisdictional.
    2. If the defendant fails to respond to the notice for preliminary hearing, the court shall enter a default judgment ordering the immediate forfeiture of the animal in accordance with the provisions of subsection 353(c) of this title. A motion to reopen a default judgment shall be filed in writing with the court no later than 30 days after entry of a default judgment. A default judgment shall not be reopened unless good cause is shown.
    1. At the hearing on the motion for forfeiture, the State shall have the burden of establishing by clear and convincing evidence that the animal was subjected to cruelty, neglect, or abandonment in violation of section 352 or 352a of this title. The court shall make findings of fact and conclusions of law and shall issue a final order. If the State meets its burden of proof, the court shall order the immediate forfeiture of the animal in accordance with the provisions of subsection 353(c) of this title. (f) (1) At the hearing on the motion for forfeiture, the State shall have the burden of establishing by clear and convincing evidence that the animal was subjected to cruelty, neglect, or abandonment in violation of section 352 or 352a of this title. The court shall make findings of fact and conclusions of law and shall issue a final order. If the State meets its burden of proof, the court shall order the immediate forfeiture of the animal in accordance with the provisions of subsection 353(c) of this title.
    2. Affidavits of law enforcement officers, humane officers, animal control officers, veterinarians, or expert witnesses of either party shall be admissible evidence that may be rebutted by witnesses called by either party. The affidavits shall be delivered to the other party at least five business days prior to the hearing. Upon request of the other party or the court, the party offering an affidavit shall make the affiant available by telephone at the hearing. The court may allow any witness to testify by telephone in lieu of a personal appearance and shall adopt rules with respect to such testimony.
    3. No testimony or other information presented by the defendant in connection with a forfeiture proceeding under this section or any information directly or indirectly derived from such testimony or other information may be used for any purpose, including impeachment and cross-examination, against the defendant in any criminal case, except a prosecution for perjury or giving a false statement.
    1. If the defendant is convicted of criminal charges under this chapter or if an order of forfeiture is entered against an owner under this section, the defendant or owner shall be required to repay all reasonable costs incurred by the custodial caregiver for caring for the animal, including veterinary expenses. The Restitution Unit within the Center for Crime Victim Services is authorized to collect the funds owed by the defendant or owner on behalf of the custodial caregiver or a governmental agency that has contracted or paid for custodial care in the same manner as restitution is collected pursuant to section 7043 of this title. The restitution order shall include the information required under subdivision 7043(e)(2)(A) of this title. The court shall make findings with respect to the total amount of all costs incurred by the custodial caregiver. (g) (1) If the defendant is convicted of criminal charges under this chapter or if an order of forfeiture is entered against an owner under this section, the defendant or owner shall be required to repay all reasonable costs incurred by the custodial caregiver for caring for the animal, including veterinary expenses. The Restitution Unit within the Center for Crime Victim Services is authorized to collect the funds owed by the defendant or owner on behalf of the custodial caregiver or a governmental agency that has contracted or paid for custodial care in the same manner as restitution is collected pursuant to section 7043 of this title. The restitution order shall include the information required under subdivision 7043(e)(2)(A) of this title. The court shall make findings with respect to the total amount of all costs incurred by the custodial caregiver.
      1. If the defendant is acquitted of criminal charges under this chapter and a civil forfeiture proceeding under this section is not pending, an animal that has been taken into custodial care shall be returned to the defendant unless the State institutes a civil forfeiture proceeding under this section within seven business days of the acquittal. (2) (A) If the defendant is acquitted of criminal charges under this chapter and a civil forfeiture proceeding under this section is not pending, an animal that has been taken into custodial care shall be returned to the defendant unless the State institutes a civil forfeiture proceeding under this section within seven business days of the acquittal.
      2. If the court rules in favor of the owner in a civil forfeiture proceeding under this section and criminal charges against the owner under this chapter are not pending, an animal that has been taken into custodial care shall be returned to the owner unless the State files criminal charges under this section within seven business days after the entry of final judgment.
      3. If an animal is returned to a defendant or owner under this subdivision, the defendant or owner shall not be responsible for the costs of caring for the animal.
  5. A forfeiture order issued under this section may be appealed as a matter of right to the Supreme Court. The order shall not be stayed pending appeal.
  6. The provisions of this section are in addition to and not in lieu of the provisions of section 353 of this title.
  7. It is unlawful for a person to interfere with a humane officer or the Secretary of Agriculture, Food and Markets engaged in official duties under this chapter. A person who violates this subsection shall be prosecuted under section 3001 of this title.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 1997, No. 130 (Adj. Sess.), § 11; 2003, No. 42 , § 2, eff. May 27, 2003; 2003, No. 120 (Adj. Sess.), § 5; 2009, No. 154 , § 238; 2013, No. 201 (Adj. Sess.), § 1; 2015, No. 155 (Adj. Sess.), § 7; 2017, No. 11 , § 24.

History

Amendments

—2017. Subdiv. (f)(2): Inserted “business” following “at least five” in the second sentence.

Subdivs. (g)(2)(A) and (B): Inserted “business” following “within seven” in both subdivisions.

—2015 (Adj. Sess.). Subsec. (a): Added the second sentence.

—2013 (Adj. Sess.). Subsec. (c): Inserted “and provided with necessary medical care” following “shall be kept in custodial care”.

Subsec. (d): Inserted “, if a criminal charge has been filed, or a petition for forfeiture if no criminal charge has been filed” following “by a motion for forfeiture”, and added the third sentence.

Subdiv. (e)(1): Deleted the former first sentence, and added the present first and second sentences.

Subdivs. (e)(2), (f)(2), and (f)(3): Added.

Subdiv. (f)(1): Substituted “Court” for “motion shall be granted and the court” following “If the State meets its burden of proof, the”.

Subdiv. (g)(1): Added the second, third, and fourth sentences.

Subsec. (h): Substituted “A forfeiture order issued” for “An order of the Criminal Division of the Supreme Court” at the beginning.

—2009 (Adj. Sess.) Substituted “criminal division of the superior court” for “district court” in subsecs. (d) and (h).

—2003 (Adj. Sess.). Subsec. (d): Substituted “institute a civil proceeding for forfeiture of the animal in the territorial unit of the district court where the offense is alleged to have occurred” for “file a motion in the criminal action for an order requiring the defendant to forfeit any and all rights in the animal prior to final disposition of the criminal charge” in the first sentence and added the second sentence.

Subsec. (e): Deleted “upon the filing of a motion under subsection (d) of this section” preceding “the court” and substituted “within 21 days after institution of a forfeiture proceeding under this section” for “as soon as practicable” in the first sentence and added the second sentence.

Subsec. (f): Inserted “for forfeiture” preceding “the state” and “or 352a” following “section 352” in the first sentence and deleted the former fourth through sixth sentences.

Subsec. (g): Designated the existing provisions as subdiv. (1), and in that subdivision inserted “or if an order of forfeiture is entered against an owner under this section” preceding “the defendant” and inserted “or owner” thereafter and added subdiv. (2).

Subsec. (h): Amended generally.

Subsec. (j): Substituted “secretary” for “commissioner” preceding “of agriculture” in the first sentence, and “this title” for “Title 13” following “section 3001” in the second sentence.

—2003. Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets” in subsecs. (a) and (j).

—1997 (Adj. Sess.). Added “searches and seizures; forfeiture” in the section catchline; added subsec. (a); in subsec. (b), deleted the last sentence, which was comparable to new subdiv. (b)(2), and added subdivs. (b)(1) through (3); rewrote subsec. (c); added subsecs. (d) through (i); in subsec. (j), inserted “or the commissioner of agriculture, food and markets” and made a related stylistic change; and made appropriate subsec. redesignations.

ANNOTATIONS

Constitutionality.

Statute permitting warrantless seizures when a humane officer witnesses a situation in which he determines that immediate action is required to protect an animal’s health and safety is not unconstitutional simply because it permits such seizures. Hegarty v. Addison County Humane Society, 2004 VT 33, 176 Vt. 405, 848 A.2d 1139, 2004 Vt. LEXIS 32 (2004).

Burden of proof.

Because the standard of proof in an animal cruelty forfeiture proceeding is clear and convincing evidence, the court will apply the same standard in a harmless-error analysis. State v. Ferguson, 2020 VT 39, 212 Vt. 276, 236 A.3d 207, 2020 Vt. LEXIS 42 (2020).

Consent to search.

In regard to the search of defendant’s kennel, where the factors demonstrating voluntariness on the part of defendant outweighed those suggesting that her consent was involuntary, the district court correctly found that she freely consented to the initial search of the kennel and, accordingly, the searches and seizures that followed were valid. State v. Stevens, 2004 VT 23, 176 Vt. 613, 848 A.2d 330, 2004 Vt. LEXIS 28 (2004) (mem.).

District court did not err by denying defendant’s motion to waive payment of security deposits required by this section where she failed to file the motion within forty-eight hours of the date of the decision. State v. Stevens, 2004 VT 23, 176 Vt. 613, 848 A.2d 330, 2004 Vt. LEXIS 28 (2004) (mem.).

Costs.

Plain meaning of the animal cruelty enforcement statute empowers the trial court to determine whether the claimed costs were reasonable. State v. Sheperd, 2017 VT 39, 204 Vt. 592, 170 A.3d 616, 2017 Vt. LEXIS 64 (2017).

Following defendant’s conviction of cruelty to animals, not only did the trial court not have to determine defendant’s ability to pay prior to ordering her to pay reasonable costs, it had no discretion to award any amount less than reasonable costs. The only discretion allowed to the trial court was to determine whether the claimed costs were reasonable. State v. Eldredge, 2006 VT 80, 180 Vt. 278, 910 A.2d 816, 2006 Vt. LEXIS 163 (2006).

Evidence.

With regard to forfeiture of the animals in an animal cruelty case, it was error to admit hearsay statements because the forfeiture statute did not create a hearsay exception for statements within the affidavit. Furthermore, the error was not harmless, requiring remand, because the trial court assigned significance to the duration of the animals’ conditions in concluding that forfeiture was warranted, and apparently relied on the hearsay reports in the affidavit in assessing the duration of their conditions. State v. Ferguson, 2020 VT 39, 212 Vt. 276, 236 A.3d 207, 2020 Vt. LEXIS 42 (2020).

Animal cruelty forfeiture statute creates an exception to the hearsay requirement for the affidavit itself, but it does not by its plain language create an exception for otherwise-inadmissible statements contained within the affidavit. State v. Ferguson, 2020 VT 39, 212 Vt. 276, 236 A.3d 207, 2020 Vt. LEXIS 42 (2020).

Veterinarian Requirement.

In an animal cruelty case, the trial court properly denied defendant’s motion to suppress evidence on the ground that five horses had not been examined by a licensed veterinarian within 72 hours of defendant’s voluntary surrender of them, as the veterinarian requirements throughout the animal cruelty statute were directed at animal welfare and not the privacy or evidentiary interests of individuals charged with animal cruelty. State v. St. Peter, 2018 VT 65, 208 Vt. 1, 193 A.3d 1189, 2018 Vt. LEXIS 76 (2018).

Because the timing of a voluntary surrender cannot be predicted by a humane officer, and a voluntary surrender does not necessarily imply the level of urgency or danger to an animal that is required for a warrantless seizure or a seizure pursuant to a warrant, it makes sense that the Legislature has afforded humane officers somewhat more time to arrange a veterinary examination — 72 hours from the surrender — in the case of voluntary surrenders. If anything, this timing difference further reinforces that the veterinarian requirements throughout the animal cruelty statute are directed at animal welfare and not the privacy or evidentiary interests of individuals charged with animal cruelty. State v. St. Peter, 2018 VT 65, 208 Vt. 1, 193 A.3d 1189, 2018 Vt. LEXIS 76 (2018).

Noncompliance with the veterinarian requirement of the provision governing search warrants in animal cruelty cases does not trigger the exclusionary rule and the suppression of evidence found during the search. Applying the exclusionary rule to guarantee statutory protections may be appropriate in some cases, but the requirement of a veterinarian’s presence was not included to protect defendants; the veterinarian requirement stems from a concern for animal welfare and not for defendants’ individual rights. State v. Sheperd, 2017 VT 39, 204 Vt. 592, 170 A.3d 616, 2017 Vt. LEXIS 64 (2017).

Warrant requirement.

Humane officers should, whenever possible, obtain a warrant prior to seizing an animal; but, when the circumstances demand it and the statutory procedures are followed, humane officers have the authority to seize animals without a warrant. Hegarty v. Addison County Humane Society, 2004 VT 33, 176 Vt. 405, 848 A.2d 1139, 2004 Vt. LEXIS 32 (2004).

Cited.

Cited in State v. Kornell, 169 Vt. 637, 741 A.2d 290, 1999 Vt. LEXIS 242 (1999) (mem.).

§ 355. Interference with or cruelty to a guide dog.

  1. As used in this section:
    1. “Custody” means the care, control, and maintenance of a dog.
    2. “Guide dog” means a dog, whose status is reasonably identifiable, individually trained to do work or perform tasks for the benefit of an individual with a disability for purposes of guiding an individual with impaired vision, alerting an individual with impaired hearing to the presence of people or sounds, assisting an individual during a seizure, pulling a wheelchair, retrieving items, providing physical support and assistance with balance and stability, and assisting with navigation.
    3. “Notice” means:
      1. a verbal or otherwise communicated warning regarding the behavior of another person and a request that the person stop the behavior; and
      2. a written confirmation submitted to the local law enforcement agency, either by the owner of the guide dog or another person on his or her behalf, which shall include a statement that the warning and request was given and the person’s telephone number.
  2. No person shall recklessly injure or cause the death of a guide dog, or recklessly permit a dog he or she owns or has custody of to injure or cause the death of a guide dog. A person who violates this subsection shall be imprisoned not more than two years or fined not more than $3,000.00, or both.
  3. No person who has received notice or has knowledge that his or her behavior, or the behavior of a dog he or she owns or has custody of, is interfering with the use of a guide dog shall recklessly continue to interfere with the use of a guide dog, or recklessly allow the dog he or she owns or has custody of to continue to interfere with the use of a guide dog, by obstructing, intimidating, or otherwise jeopardizing the safety of the guide dog user or his or her guide dog. A person who violates this subsection shall be imprisoned not more than one year or fined not more than $1,000.00, or both.
  4. No person shall recklessly interfere with the use of a guide dog, or recklessly permit a dog he or she owns or has custody of to interfere with a guide dog, by obstructing, intimidating, or otherwise jeopardizing the safety of the guide dog user or his or her guide dog. A person who violates this subsection commits a civil offense and shall be:
    1. for a first offense, fined not more than $100.00;
    2. for a second or subsequent offense, fined not more than $250.00.
  5. A violation of subsection (d) of this section shall constitute notice as defined in subdivision (a)(3) of this section.
  6. As provided in section 7043 of this title, restitution shall be considered by the court in any sentencing under this section if the victim has suffered any material loss. Material loss for purposes of this section means uninsured:
    1. veterinary medical expenses;
    2. costs of temporary replacement assistance services, whether provided by a person or guide dog;
    3. replacement value of an equally trained guide dog without any differentiation for the age or experience of the dog;
    4. loss of wages; and
    5. costs and expenses incurred by the person as a result of the injury to the guide dog.

HISTORY: Added 2009, No. 121 (Adj. Sess.), § 1.

§ 356. Humane officer required training; authorization to perform duties.

  1. All humane officers as defined in subdivision 351(4)(B) of this title shall complete the animal cruelty response training as required by 20 V.S.A. § 2365b in order to serve in the capacity of a humane officer.
  2. A humane officer as defined in subdivision 351(4)(B) of this title shall be authorized to serve as a humane officer if the humane officer is employed by a humane society or a municipality and has completed the trainings as required by this section and by 20 V.S.A. § 2365b . Upon termination of employment from the humane society or municipality through which they were authorized to serve, the person shall no longer be authorized to perform the legal functions of a humane officer.
  3. The Animal Cruelty Investigation Advisory Board shall keep and at least annually update an index of individuals who have completed the animal cruelty response training as required by this section and by 20 V.S.A. § 2365b .

HISTORY: Added 2015, No. 155 (Adj. Sess.), § 6, eff. July 1, 2017; amended 2021, No. 38 , § 2.

History

Amendments

—2021. Section amended generally.

Subchapter 3. General Provisions

§ 361. Interference with domestic animals.

  1. A person commits the crime of interference with domestic animals if the person confines or secretes a domestic animal owned by another, with the intention of concealing its identity or the identity of its owner.  A person also commits the crime of interference with domestic animals if he or she conceals the fact that the animal is licensed by removing the collar, harness, or identification, or defaces a tattoo or brand tag from any licensed animal or other domestic animal owned by another.
  2. Interference with domestic animals shall be punishable by a sentence of imprisonment of not more than one year or a fine of not more than $2,000.00, or both.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2.

§ 362. Exposing poison on the land.

A person who deposits any poison or substance poisonous to animals on his or her premises or on the premises or buildings of another, with the intent that it be taken by an animal, shall be in violation of subdivision 352(2) of this title. This section shall not apply to control of wild pests; protection of crops from insects, mice, and plant diseases; or the Department of Fish and Wildlife in control of destructive wild animals.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 2003, No. 120 (Adj. Sess.), § 6; 2019, No. 77 , § 7, eff. June 19, 2019.

History

Amendments

—2019. Substituted “premises” for “premise” in the first sentence, and deleted “and employees and agents of the State Forest Service” following “Wildlife” in the second sentence.

—2003 (Adj. Sess.). Substituted “subdivision 352(2)” for “subdivision 352(a)(2)” in the first sentence.

§ 363. Shooting birds for amusement.

Except for the taking of game pursuant to Title 10, any person who keeps or uses any live bird for release to be shot for amusement or as a test of marksmanship or provides buildings, sheds, yards, rooms, fields, or other areas to be used for such shooting purposes, shall be in violation of subdivision 352(1) of this title.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 2003, No. 120 (Adj. Sess.), § 7.

History

Amendments

—2003 (Adj. Sess.). Substituted “subdivision 352(1)” for “subdivision 352(a)(1)”.

§ 364. Animal fights.

  1. A person who participates in a fighting exhibition of animals shall be in violation of subdivisions 352(5) and (6) of this title.
  2. Notwithstanding any provision of law to the contrary, in addition to seizure of fighting birds or animals involved in a fighting exhibition, a law enforcement officer or humane officer may seize:
    1. any equipment associated with that activity;
    2. any other personal property which is used to engage in a violation or further a violation of subdivisions 352(5) and (6) of this title; and
    3. monies, securities, or other things of value furnished or intended to be furnished by a person to engage in or further a violation of subdivisions 352(5) and (6) of this title.
  3. In addition to the imposition of a penalty under this chapter, conviction under this section shall result in forfeiture of all seized fighting animals, equipment, and other property subject to seizure under this section. The animals may be destroyed humanely or otherwise disposed of as directed by the court.
  4. Property subject to forfeiture under this subsection may be seized upon process issued by the court having jurisdiction over the property. Seizure without process may be made:
    1. incident to a lawful arrest;
    2. pursuant to a search warrant; or
    3. if there is probable cause to believe that the property was used or is intended to be used in violation of this section.
  5. Forfeiture proceedings instituted pursuant to the provisions of this section for property other than animals are subject to the procedures and requirements for forfeiture as set forth in 18 V.S.A. chapter 84, subchapter 2.

HISTORY: Added 1989, No. 270 , (Adj. Sess.), § 2; amended 2015, No. 53 , § 2.

History

Amendments

—2015. Section amended generally.

§ 365. Shelter of animals.

  1. Adequate shelter.   All livestock and animals that are to be predominantly maintained in an outdoor area shall be provided with adequate natural shelter or adequate constructed shelter to prevent direct exposure to the elements. Pursuant to section 351b of this title, this section shall not apply to livestock and poultry husbandry practices for raising, management, and use of animals.
  2. Shelter for livestock.
    1. Livestock animals confined in enclosed areas shall be provided with adequate ventilation and shall have access to adequate exercise. Equines housed within a designated space continually, without access to a paddock, turn out, or other exercise area, shall be provided the opportunity for periodic exercise, either through free choice or through a forced work program, to maintain normal muscle tone and mass for the age, size, and condition of the animal or in accordance with accepted agricultural or veterinary practices. Nothing in this section shall control dairy herd housing facilities, either loose housing, comfort tie-stall, or stanchion lockups, or other housing under control of the Agency of Agriculture, Food and Markets.
    2. Notwithstanding the provisions of subdivision (1) of this subsection, livestock may be temporarily confined in a space sufficient for them to stand and turn about freely, provided that they are exercised in accordance with livestock and poultry husbandry practices and are provided sufficient food, water, shelter, and proper ventilation.
    3. A leash, rope, or chain used to restrict a livestock animal shall be affixed in a manner that prevents the livestock animal from becoming entangled or injured and shall permit the livestock animal access to adequate shelter, adequate food, and adequate water. This subdivision shall not apply to a livestock animal that is in transit or in the immediate control of a person.
  3. Minimum size of living space; dogs and cats.
    1. A dog shall be provided a minimum living space that is large enough to allow the dog, in a normal manner, to turn about freely, stand, sit, and lie down. A dog shall be presumed to have minimum living space if provided with floor space in the greater amount of the following:
      1. If the dog is:
        1. less than 33 pounds (15 kilograms), floor space of at least eight square feet;
        2. 33 or more pounds (15 or more kilograms) up to and including 66 pounds (30 kilograms), floor space of at least 12 square feet; and
        3. more than 66 pounds (30 kilograms), floor space of at least 24 square feet.
      2. Floor space in square footage calculated according to the following formula: floor space in square feet = (length of dog in inches + 6)  s (length of dog in inches + 6) ÷ 144. The length of the dog in inches shall be measured from the tip of the nose of the dog to the base of its tail.
    2. The specifications required by subdivision (1) of this subsection shall be required for each dog, regardless of whether the dog is housed individually or with other animals.
      1. A cat over the age of two months shall be provided a minimum living space that is large enough to allow the cat, in a normal manner, to turn about freely, stand, sit, and lie down. A cat shall be presumed to have minimum living space if provided with floor space of at least eight square feet and a primary structure of at least 24 inches in height. Floor space shall be calculated to include any raised resting platforms provided. (3) (A) A cat over the age of two months shall be provided a minimum living space that is large enough to allow the cat, in a normal manner, to turn about freely, stand, sit, and lie down. A cat shall be presumed to have minimum living space if provided with floor space of at least eight square feet and a primary structure of at least 24 inches in height. Floor space shall be calculated to include any raised resting platforms provided.
      2. The requirements of this subdivision (c)(3) shall apply to each cat regardless of whether the cat is housed individually or with other animals.
      1. Each female dog with nursing puppies shall be provided the living space required under subdivision (1) of this subsection (c) plus sufficient additional floor space to allow for a whelping box and the litter, based on the size or the age of the puppies. When the puppies discontinue nursing, the living space requirements of subdivisions (1) and (2) of this subsection shall apply for all dogs housed in the same living space. (4) (A) Each female dog with nursing puppies shall be provided the living space required under subdivision (1) of this subsection (c) plus sufficient additional floor space to allow for a whelping box and the litter, based on the size or the age of the puppies. When the puppies discontinue nursing, the living space requirements of subdivisions (1) and (2) of this subsection shall apply for all dogs housed in the same living space.
      2. Each female cat with nursing kittens shall be provided the living space required under subdivision (3) of this subsection (c) plus sufficient additional floor space to allow for a queening box and the litter, based on the size or the age of the kittens. When the kittens discontinue nursing, the living space requirements of subdivision (3) of this subsection shall apply for all cats housed in the same living space.
      1. Females in heat (estrus) shall not be housed in the same primary living space or enclosure with intact males, except for breeding purposes. (5) (A) Females in heat (estrus) shall not be housed in the same primary living space or enclosure with intact males, except for breeding purposes.
      2. A dog or cat exhibiting a vicious or overly aggressive disposition shall be housed separately from other dogs or cats.
    3. All dogs or cats shall have access to adequate water and adequate food.
  4. Daily exercise; dogs or cats.   A dog or cat confined in a living space shall be permitted outside the living space for an opportunity of at least one hour of daily exercise, unless otherwise modified or restricted by a licensed veterinarian. Separate space for exercise is not required if an animal’s living space is at least three times larger than the minimum requirements set forth in subdivision (c)(1) of this section.
  5. Shelter for dogs maintained outdoors in enclosures.
    1. Except as provided in subdivision (2) of this subsection, a dog or dogs maintained outdoors in an enclosure shall be provided with one or more shelter structures. A shelter structure shall:
      1. Provide each dog housed in the structure sufficient space to, in a normal manner, turn about freely, stand, sit, and lie down.
      2. Be structurally sound and constructed of suitable, durable material.
      3. Be enclosed with sides, a roof, and a ground or floor surface that enables the dog to stay clean and dry.
      4. Have an entrance or portal large enough to allow each dog housed in the shelter unimpeded access to the structure, and the entrance or portal shall be constructed with a windbreak or rainbreak.
      5. Provide adequate protection from cold and heat, including protection from the direct rays of the sun and the direct effect of wind, rain, or snow. Shivering due to cold is evidence of inadequate shelter for any dog.
    2. A shelter structure is not required for a healthy livestock guardian dog that is maintained outdoors in an enclosure.
    3. If multiple dogs are maintained outdoors in an enclosure at one time:
      1. Each dog will be provided with an individual structure, or the structure or structures provided shall be cumulatively large enough to contain all of the dogs at one time.
      2. A shelter structure shall be accessible to each dog in the enclosure.
    4. The following categories of dogs shall not be maintained outdoors in an enclosure when the ambient temperature is below 50 degrees Fahrenheit:
      1. dogs that are not acclimated to the temperatures prevalent in the area or region where they are maintained;
      2. dogs that cannot tolerate the prevalent temperatures of the area without stress or discomfort; and
      3. sick or infirm dogs or dogs that cannot regulate their own body temperature.
    5. Metal barrels, cars, refrigerators, freezers, and similar objects shall not be used as a shelter structure for a dog maintained in an outdoor enclosure.
    6. In addition to the shelter structure, one or more separate outdoor areas of shade shall be provided, large enough to contain all the animals and protect them from the direct rays of the sun.
  6. Tethering of dog.
    1. Except as provided under subdivision (2) of this subsection, a dog predominantly maintained outdoors on a tether shall be on a tether that allows the dog to walk a distance in any one direction that is at least four times the length of the dog as measured from the tip of its nose to the base of its tail, and shall allow the dog access to the shelter.
      1. A dog regularly used in training or participation in competitive or recreational sled dog activities and housed outdoors in close proximity with other dogs may, if necessary for the safety of the dog, be maintained on a tether that allows the dog to walk a distance in any one direction that is at least two times the length of the dog, as measured from the tip of its nose to the base of its tail. The tether shall be attached to the anchor at a central point, allowing the dog access to a 360 degree area. (2) (A) A dog regularly used in training or participation in competitive or recreational sled dog activities and housed outdoors in close proximity with other dogs may, if necessary for the safety of the dog, be maintained on a tether that allows the dog to walk a distance in any one direction that is at least two times the length of the dog, as measured from the tip of its nose to the base of its tail. The tether shall be attached to the anchor at a central point, allowing the dog access to a 360 degree area.
      2. If a tethering method involves the use of a trolley and cable and allows the dog to move freely along the length of the cable, the tether shall be long enough to allow the dog to lie down within its shelter without discomfort.
    2. A tether used for any dog shall be attached to both the dog and the anchor using swivels or similar devices that prevent the tether from becoming entangled or twisted. The tether shall be attached to a well-fitted collar or harness on the dog. The tether shall be of a size and weight that will not cause discomfort to a tethered dog. A choke collar shall not be used as part of a tethering method.
  7. , (h)[Repealed.]

    (i) Violations. Failure to comply with this section shall be a violation of subdivision 352(3) or (4) of this title.

    (j) [Repealed.]

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 1989, No. 256 (Adj. Sess.), § 10(a), eff. Jan. 1, 1991; 1997, No. 130 (Adj. Sess.), § 12; 2003, No. 120 (Adj. Sess.), § 8; 2017, No. 58 , § 2; 2019, No. 116 (Adj. Sess.), § 2; 2021, No. 38 , § 4.

History

Amendments

—2021. Subsec. (a): Added the second sentence.

Subdiv. (b)(1): Deleted the last sentence.

—2019 (Adj. Sess.). Subsec. (a): Inserted “natural” following “with adequate” and inserted “or adequate constructed shelter”.

Subdiv. (b)(1): Amended generally.

Subdiv. (b)(3): Added.

—2017. Section amended generally.

—2003 (Adj. Sess.). Section amended generally.

—1997 (Adj. Sess.). Subsec. (a): Substituted “livestock” for “animals customarily known as livestock, including cattle, sheep, goats, horses and other equidae and camelids”.

—1989 (Adj. Sess.). Subsec. (b): Substituted “department of agriculture, food and markets” for “department of agriculture” in the third sentence.

§ 366. Prohibited use of animals.

  1. No live animal shall be used as a fund-raising device or award in a contest, lottery, game, or promotion by any person or entity other than at an event recognized by an agricultural or sporting association. An alternative cash prize shall be offered. A person or entity shall not transfer or award an animal without reasonable assurance that the person receiving the animal will provide proper transportation and adequate care.
  2. No live fowl, turtles, or rabbits under eight weeks of age in lots of less than six shall be offered for sale or sold, displayed, or given away.
  3. No dog, puppy, cat, or kitten shall be offered for sale, sold, displayed, or given away on the side of any highway, as defined in 19 V.S.A. § 1 , except by the owner or lessor of the abutting land. It shall be an affirmative defense under this subsection that a transaction involving a sale or giving away of a dog, puppy, cat, or kitten was previously arranged by the parties, and the sale or giving away on the side of the highway was only for the convenient transfer of the animal.
  4. A person who violates this section shall be subject to a fine of not more than $250.00.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 1997, No. 130 (Adj. Sess.), § 13; 2001, No. 98 (Adj. Sess.), § 1, eff. May 8, 2002.

History

Amendments

—2001 (Adj. Sess.) Added subsec. (c) and redesignated former subsec. (c) as subsec. (d).

—1997 (Adj. Sess.). Subsec. (a): Rewrote the paragraph.

Subchapter 5. Euthanasia

§ 371. Euthanizing animals.

  1. Registered animal shelters may purchase, possess, and administer approved euthanasia solution to euthanize injured, sick, homeless, or unwanted pets and animals in accordance with the rules established by the Secretary of Agriculture, Food and Markets under 20 V.S.A. § 3913 .
  2. No person shall euthanize animals for an animal shelter without first completing the certification training program under 20 V.S.A. § 3913 , except a Vermont licensed veterinarian and a person in training under such program.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 1993, No. 116 (Adj. Sess.), § 2, eff. March 23, 1994; 2003, No. 42 , § 2, eff. May 27, 2003.

History

Revision note—

In subsec. (b), substituted “commissioner of agriculture, food and markets” for “commissioner of agriculture” for purposes of conformity with 1989, No. 256 (Adj. Sess.), § 10(a).

Amendments

—2003. Subsec. (a): Substituted “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets”.

—1993 (Adj. Sess.). Section amended generally.

Subchapter 7. Transportation of Animals

§ 381. Transportation by railroad; rest and feeding.

  1. A railroad company transporting animals shall not permit them to be confined in cars more than 28 consecutive hours, including the time they have been confined on connecting roads, without unloading them for rest, water, and feeding for at least five consecutive hours, unless prevented from so unloading by storm or other accidental causes.  Animals unloaded shall be properly fed, watered, and sheltered during each rest by the owner, or fed, watered, and sheltered during each rest by the owner or person having custody of the animals.  In case of default, the railroad company transporting the animal shall provide feed and watering at the owner’s expense.  In this case, the company shall have a lien upon the animals for food, care, and custody furnished.
  2. Violation of the 28-hour rule of this section is a violation of subdivision 352(4) of this title.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 2003, No. 120 (Adj. Sess.), § 9.

History

Amendments

—2003 (Adj. Sess.). Subsec. (b): Substituted “subdivision 352(4)” for “subdivision 352(a)(4)”.

§ 382. Transportation by truck; rest and feeding.

  1. No person shall confine or permit to be confined any animals being transported by truck under his or her orders or control for more than 18 consecutive hours without their removal from the truck for a rest period of not less than four hours.  The animals shall be provided with feed and water during this period except when reasonable space, food, and water are provided in the vehicle.  Reasonable space for animals and protection from the weather shall be provided in trucks employed commercially in the long distance transportation of animals.
  2. A person who violates a provision of this section shall be in violation of subdivision 352(4) of this title.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 2003, No. 120 (Adj. Sess.), § 10.

History

Amendments

—2003 (Adj. Sess.). Subsec. (b): Substituted “subdivision 352(4)” for “subdivision 352(a)(4)”.

§ 383. Shipping of animals.

  1. There shall be separation of livestock species, as defined in 6 V.S.A. § 761 , when these animals are transported by either rail or truck.
  2. Failure to provide such separation shall be a violation of subdivisions 352(3) and (4) of this title.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 1995, No. 39 , § 3, eff. April 17, 1995; 2003, No. 120 (Adj. Sess.), § 11.

History

Amendments

—2003 (Adj. Sess.). Subsec. (b): Substituted “subdivisions 352(3) and (4)” for “subdivisions 352(a)(3) and (4)”.

—1995. Subsec. (a): Inserted “livestock” preceding “species”, “as defined in section 761 of Title 6” thereafter and “these” preceding “animals”.

§ 384. Preference of animals as freight.

Any private or common carrier operating within this State shall yield to vehicles containing cattle, sheep, swine, equine, or other animals to allow continuous passage in preference to other freight. All vehicles and common carriers loaded with animals at any station shall take precedence over all other freight.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2.

§ 385. Transportation on the highway without title documents.

  1. No person, except the owner of cattle being transported or a person acting under written authority of the owner, shall transport cattle on any public highway unless the person has in his or her possession a bill of sale or a memorandum signed by the owner of the cattle and containing the owner’s address, the number, breed, and ear tag number of the cattle, and the name of the place to which the cattle are to be transported. Any person transporting such cattle shall, on demand, exhibit a bill of sale or memorandum to any State investigator, sheriff, deputy sheriff, constable, police officer, or State Police officer.
  2. Violation of this section shall be punishable by a sentence of imprisonment of not more than 60 days or a fine of not more than $1,000.00, or both.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2.

§ 386. Confinement of animals in vehicles.

  1. A person shall not leave an animal unattended in a standing or parked motor vehicle in a manner that would endanger the health or safety of the animal.
  2. Any humane officer or member of a fire and rescue service may use reasonable force to remove any such animal from a motor vehicle.  The officer so removing an animal shall deliver the animal to a humane society, veterinarian, or town or municipal pound.  If the owner of the animal cannot be found, the officer shall place a written notice in the vehicle, bearing the name of the officer and the department and address where the animal may be claimed.  The owner shall be liable for reasonable expenses, and a lien may be placed on the animal for these expenses.  The officer may not be held liable for criminal or civil liability for any damage resulting from actions taken under subsection (a) of this section.
  3. Failure to comply with subsection (a) of this section is a violation of subdivision 352(3) of this title.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 2003, No. 120 (Adj. Sess.), § 12.

History

Amendments

—2003 (Adj. Sess.). Subsec. (c): Substituted “subdivision 352(3)” for “subdivision 352(a)(3)”.

§ 387. Transportation of horses; vehicles.

  1. Every vehicle utilized for the transportation of more than seven horses on the highway shall meet the following requirements:
    1. there shall be at least two doors for loading and unloading, which shall not be on the same side;
    2. loading ramps shall be provided if the vertical distance from the floor of the truck to the ground is greater than 15 inches;
    3. the interior compartment construction shall be of smooth material with no hazardous, sharp protrusions;
    4. there shall be sufficient openings to ensure adequacy of ventilation;
    5. partitions shall be placed in compartments having no stalls;
    6. doorways shall be of sufficient height to allow safe loading and unloading; and
    7. compartment height shall be sufficient to allow clearance of the poll and withers of each horse loaded.
  2. Vehicles under this section shall have no more than one tier in compartments carrying horses.
  3. The Secretary shall establish rules for compliance with the provisions of this subchapter.
  4. Failure to comply with this section, or the rules established thereunder, is a violation of subdivision 352(3) of this title.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 2003, No. 42 , § 2, eff. May 27, 2003; 2003, No. 120 (Adj. Sess.), § 13.

History

Amendments

—2003 (Adj. Sess.). Subsec. (d): Substituted “subdivision 352(3)” for “subdivision 352(a)(3)”.

—2003. Subsec. (c): Substituted “secretary” for “commissioner”.

Subchapter 9. Use of Drugs in Animals in Livestock Competitions

§ 391. Definitions.

In addition to those definitions set forth in section 351 of this title, the following words shall have the following definitions:

  1. “Animal pulling contest” means a pulling contest in which weights are pulled by animals for competitive purposes.
  2. “Secretary” means the Secretary of Agriculture, Food and Markets or a designee.
  3. “Competitive event” means pulling contests, trail rides, shows, and any other competition for premiums or prizes involving animals.
  4. “Drug” means those substances identified under 18 V.S.A. § 4051(5) .
  5. “Owner” means any person, partnership, or corporation having title to animals in any competitive event.
  6. “Superintendent” means any individual designated to control animals during any livestock competition.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 2003, No. 42 , § 2, eff. May 27, 2003.

History

Revision note

—2009. In subdiv. (4), substituted “subdivision 4051(5)” for “subsection 4051(e)” for purposes of clarity and to conform reference to V.S.A. style.

Revision note—. In subdiv. (2), substituted “commissioner of agriculture, food and markets” for “commissioner of agriculture” for purposes of conformity with 1989, No. 256 (Adj. Sess.), § 10(a).

Amendments

—2003. Pursuant to the general amendment in Act 42, Sec. 2, substituted “Secretary” for “Commissioner” and “secretary of agriculture, food and markets” for “commissioner of agriculture, food and markets”.

§ 392. Administration of drugs; violation; rules.

  1. No person shall administer internally or externally a drug that may affect or alter the normal performance of an animal entered in an animal pulling contest or competitive event. Any animal so treated shall be disqualified, and any award, premium, or trophy forfeited.
  2. The Secretary shall establish rules to implement the provisions of this subchapter.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 2003, No. 42 , § 2, eff. May 27, 2003.

History

Amendments

—2003. Subsec. (b): Substituted “secretary” for “commissioner”.

CROSS REFERENCES

Procedure for adoption of administrative rules, see 3 V.S.A. part 1, chapter 25.

§ 393. Statement of ownership.

A signed statement of ownership in the name of the handler, including a description of the animal, shall be submitted to the superintendent before the start of a competitive event or animal pulling contest.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2.

§ 394. Testing.

  1. The Secretary may take specimens for drug testing of saliva, blood, or urine, or all three, from any animal entered in an animal pulling contest or a competitive event.  If a drug is found in a chemical analysis of the saliva, urine, or blood, it shall be prima facie evidence that a drug has been administered.  A proper chain of evidence shall be maintained.
  2. The Secretary may assess and retain a fee for the taking of a drug test sufficient to recoup the expense of the test procedure.
  3. Failure of an owner or handler to submit an animal for testing on request shall be treated under this chapter as if the presence of a drug were found in a test performed on the animal.
  4. Failure to provide adequate information or assistance in animal restraint for the Secretary to obtain an official sample shall be a violation of this section, subject to the penalty provision of section 397 of this title.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 1993, No. 124 (Adj. Sess.), § 1; 2003, No. 42 , § 2, eff. May 27, 2003.

History

Amendments

—2003. Substituted “secretary” for “commissioner” wherever it appeared throughout the section.

—1993 (Adj. Sess.). Rewrote former subsec. (c) as subsecs. (c) and (d).

§ 395. Hearing; finding; order.

Within 14 calendar days from the date test results are received by the Secretary, the Secretary shall notify the superintendent of the animal pulling contest or competitive event, and the animal’s owner, of the results. If the presence of a drug is found in the test, the Secretary shall hold a hearing, at which the owner of the animal or a representative of the owner may appear and be heard. On the basis of all evidence presented, the Secretary shall issue a finding of whether the provisions of this subchapter have been violated. The Secretary shall make an appropriate order of whether the owner, the representative of the owner, or the animal shall be eligible to participate in future competitive events or animal pulling contests held in this State.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 2003, No. 42 , § 2, eff. May 27, 2003.

History

Amendments

—2003. Substituted “secretary” for “commissioner” wherever it appeared throughout the section.

§ 396. Appeal.

Any person aggrieved by a finding and order or penalty of the Secretary under this subchapter may appeal to the Superior Court in the county in which the animal pulling contest or competitive event was held.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 2003, No. 42 , § 2, eff. May 27, 2003.

History

Amendments

—2003. Substituted “secretary” for “commissioner” preceding “under this”.

CROSS REFERENCES

Appeals from decisions of governmental agencies, see Rule 74, Vermont Rules of Civil Procedure.

§ 397. Administrative penalty.

In addition to the forfeiture of any award, premium, or trophy otherwise due, and in addition to other penalties provided by law, a person violating this chapter may be assessed an administrative penalty in an amount not to exceed $1,000.00 by the Secretary. The Secretary shall utilize the provisions of 6 V.S.A. §§ 16 and 17 for purposes of assessing the penalty.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 2003, No. 42 , § 2, eff. May 27, 2003; 2019, No. 77 , § 8, eff. June 19, 2019.

History

Amendments

—2019. Added “for purposes of” preceding “assessing the penalty.”

—2003. Substituted “secretary” for “commissioner” in the first and second sentences.

§ 398. Loss of eligibility.

Any person fined or convicted of administering an unlawful drug to animals entered in a competitive event or animal pulling contest held in another state shall be ineligible to compete in any animal pulling contest or competitive event in this State for a period not to exceed two years from the date of such fine or court conviction.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2.

§ 399. Abuse; disqualification.

  1. Any person found rein-whipping or otherwise whipping a horse in an animal pulling contest under this subchapter shall be automatically disqualified, and be ineligible to receive any award, premium, or trophy.  The light use of reins applied to the hindquarters may be permitted on entry to the pit and while the team is making its draw.  The use of reins for other than guiding the animals at any other time is prohibited.
  2. Any person found face-whipping cattle in an animal pulling contest shall be automatically disqualified and ineligible to receive any award, premium, or trophy.  If a goad stick is used in the contest, it must be made of wood, not taped, and not more than 3/4 inches in diameter.
  3. Excessive violation of either subsection (a) or (b) of this section shall be deemed a violation of subdivision 352(2) of this title.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2; amended 2003, No. 120 (Adj. Sess.), § 14.

History

Amendments

—2003 (Adj. Sess.). Subsec. (c): Substituted “subdivision 352(2)” for “subdivision 352(a)(2)”.

§ 400. Alcohol breath test; disqualification.

A superintendent may require that contestants or other participants at an animal pulling contest or competitive event pass a breathalyzer test for alcohol. The test shall be conducted by the State Police, sheriff, or local police before the contest or event occurs. Any person above a 0.10 percent concentration level shall be disqualified and barred from participation in any animal pulling contest or competitive event on the day of the test.

HISTORY: Added 1989, No. 270 (Adj. Sess.), § 2.

Chapter 9. Animals

Subchapter 1. General Provisions

§§ 401-423. Repealed. 1989, No. 270 (Adj. Sess.), § 1.

History

Former §§ 401-423. Prior to repeal, former § 403 was amended by 1985, No. 161 (Adj. Sess.).

Former § 403a, relating to wilful injury of police dogs, was derived from 1985, No. 210 (Adj. Sess.).

Former § 420 had been previously repealed by 1973, No. 249 (Adj. Sess.), § 111.

Former § 423, relating to penalties for vivisection of dogs and cats, was derived from 1983, No. 150 (Adj. Sess.), § 1.

Subchapter 2. Societies for the Prevention of Cruelty to Animals

§§ 451-454. Repealed. 1989, No. 270 (Adj. Sess.), § 1.

History

Former §§ 451-454. Former § 451, relating to power to interfere with acts of cruelty, was derived from V.S. 1947, § 8372; P.L. § 8512; 1933, No. 157 , § 8160; G.L. § 6931 and 1917, No. 237 , § 1.

Former § 452, relating to killing of diseased or unfit animals, was derived from V.S. 1947, § 8373; P.L. § 8513; G.L. § 6932 and 1917, No. 237 , § 2, and amended by 1967, No. 365 (Adj. Sess.), § 6, eff. March 27, 1968.

Former § 453, relating to care of mistreated animals; lien, was derived from V.S. 1947, § 8374; P.L. § 8514; G.L. § 6933 and 1917, No. 237 , § 3.

Former § 454 relating to power of arrest; penalty for impeding, was derived from V.S. 1947, § 8375; P.L. § 8515; G.L. § 6934 and 1917, No. 237 , § 4.

Subchapter 3. Transportation of Animals

§§ 461-465. Repealed. 1989, No. 270 (Adj. Sess.), § 1.

History

Former §§ 461-465. Former § 461, relating to transportation by railroad; rest and feeding, was derived from V.S. 1947, §§ 8363, 8364; P.L. §§ 8503, 8504; G.L. §§ 6922, 6923; P.S. §§ 5812, 5813; V.S. §§ 4996, 4997; R.L. § 4185 and 1876, No. 14 , § 3.

Former § 462, relating to transportation by truck; rest and feeding, was derived from 1955, No. 188 , § 4 and 1951, No. 182 , § 1.

Former § 463, relating to care and treatment, was derived from 1951, No. 182 , § 2.

Former § 464, shipping calves, sheep or swine in same railroad car with cattle, was derived from V.S. 1947, § 8365; P.L. § 8505; G.L. § 6924; P.S. § 5814; 1900, No. 101 , §§ 1, 2 and had been formerly repealed by 1979, No. 152 (Adj. Sess.).

Former § 465, relating to transportation of cattle on highway without title documents, was derived from V.S. 1947, § 7593, 1939, No. 219 , § 1 and was amended by 1965, No. 194 , § 10 and 1973, No. 249 (Adj. Sess.), § 42; 1981, No. 223 (Adj. Sess.), § 23. For present provisions relating to transportation of animals, see § 381 et seq. of this title.

For present provisions relating to transportation of animals, see § 381 et seq. of this title.

Subchapter 4. Animal Stealing

§ 481. Repealed. 1989, No. 270 (Adj. Sess.), § 1.

History

Former § 481. Prior to repeal, former § 481 related to theft, killing, or injury of domestic animals and was derived from 1967, No. 365 (Adj. Sess.), § 7; 1981, No. 159 (Adj. Sess.); 1983, No. 150 (Adj. Sess.), § 2.

Subchapter 5. Animal Pulling Contests

§§ 491-497. Repealed. 1989, No. 270 (Adj. Sess.), § 1.

History

Former §§ 491-497. Former §§ 491-497, relating to animal pulling contests, were derived from 1975, No. 173 (Adj. Sess.).

For present provisions relating to use of drugs in animals in livestock competitions, see § 391 et seq. of this title.

Chapter 11. Arson and Burning

§ 501. Arson causing death.

A person who willfully and maliciously burns the building of another, or willfully and maliciously sets fire to a building owned in whole or in part by himself or herself, by means of which the life of a person is lost, shall be guilty of murder in the first degree.

History

Source.

1957, No. 210 , § 4. V.S. 1947, § 8283. P.L. § 8419. G.L. § 6849. P.S. § 5743. V.S. § 4927. R.L. § 4125. G.S. 113, § 1. R.S. 95, § 1. 1818, p. 5.

ANNOTATIONS

Evidence.

In a prosecution for arson, testimony of a witness whose first examination of burned premises took place some fifteen months after fire, during which time at least some changes had taken place on premises, and whose conclusion is that he cannot make a finding as to cause of fire could not create such a clear case of doubt of the respondent’s guilt as would entitle him to an acquittal. State v. Brown, 122 Vt. 59, 163 A.2d 845, 1960 Vt. LEXIS 104 (1960), cert. denied, 365 U.S. 822, 81 S. Ct. 706, 5 L. Ed. 2d 699, 1961 U.S. LEXIS 1776 (1961).

Multiplicity.

Actions specifically prohibited by the arson-causing-death statute are defined by reference to the victim, and a defendant may therefore be charged with multiple counts of arson causing death where multiple deaths result from the same act of setting a fire. Thus, counsel was not ineffective for not raising a multiplicity challenge. In re Williams, 2014 VT 67, 197 Vt. 39, 101 A.3d 151, 2014 Vt. LEXIS 70 (2014).

Cited.

Cited in State v. Larose, 144 Vt. 492, 479 A.2d 162, 1984 Vt. LEXIS 505 (1984).

§ 502. First degree arson.

A person who willfully and maliciously sets fire to or burns or causes to be burned, or who willfully and maliciously aids, counsels, or procures the burning of any dwelling house, whether occupied, unoccupied, or vacant, or any kitchen, shop, barn, stable, or other outhouse that is parcel thereof, or belonging, or adjoining thereto, whether the property of himself or herself or of another, shall be guilty of arson in the first degree, and shall be imprisoned not more than 10 years nor less than two years or fined not more than $2,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8284. 1947, No. 202 , § 8437. 1935, No. 202 , § 1.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Circumstantial evidence.

Incendiarism may be proved by circumstantial evidence. State v. Bessette, 129 Vt. 87, 271 A.2d 846, 1970 Vt. LEXIS 208 (1970).

Construction.

This section denounces as an offense a number of separate and distinct acts, enumerated in the disjunctive. State v. Polidor, 130 Vt. 34, 285 A.2d 770, 1971 Vt. LEXIS 218 (1971).

Evidence.

There was sufficient evidence to support defendant’s conviction for two counts of arson, such that denial of his acquittal motion was proper; there was evidence that the fires were intentional based, in part, on the psychological doctrine of chances arising from two prior fires at his house. State v. Vuley, 2013 VT 9, 193 Vt. 622, 70 A.3d 940, 2013 Vt. LEXIS 8 (2013).

Uncontradicted testimony of accomplices that they joined defendant in sprinkling gasoline in various rooms of farm house and that defendant struck match and ignited building was sufficient to sustain conviction under this section. State v. Crepeault, 126 Vt. 338, 229 A.2d 245, 1967 Vt. LEXIS 194, cert. denied, 389 U.S. 915, 88 S. Ct. 249, 19 L. Ed. 2d 267, 1967 U.S. LEXIS 477 (1967).

Information.

The separate and distinct acts denounced as an offense by this section and enumerated in the disjunctive may be charged conjunctively, and an accused may be found guilty of any of the acts. State v. Polidor, 130 Vt. 34, 285 A.2d 770, 1971 Vt. LEXIS 218 (1971).

Use of word “and” in information and warrant charging that accused did “willfully and maliciously set fire to, burn and cause to be burned,” demonstrated that information and warrant was worded in the conjunctive, and wording was proper under rule that statute making separate and distinct acts on offense and disjunctively worded may be charged in the conjunctive. State v. Polidor, 130 Vt. 34, 285 A.2d 770, 1971 Vt. LEXIS 218 (1971).

Information and warrant charging that defendant did “willfully and maliciously set fire to, burn and cause to be burned, a shop” was worded in the conjunctive, and although state’s evidence indicated only that defendant participated in the planning of the fire, supplied flammable material and rendered sprinkling system useless, defendant could not prevail on claim that information and warrant were defective, that this materially prejudiced him, and that state should have filed a conjunctive information as to all the acts disjunctively enumerated in this section. State v. Polidor, 130 Vt. 34, 285 A.2d 770, 1971 Vt. LEXIS 218 (1971).

Mere fact of burning of a building is not sufficient to establish corpus delicti in an arson prosecution, and if nothing more appears it will be presumed that the fire was the result of an accident or some providential cause, rather than the result of a criminal design. State v. Bessette, 129 Vt. 87, 271 A.2d 846, 1970 Vt. LEXIS 208 (1970).

The jury was justified in finding beyond a reasonable doubt that the fire in question was of incendiary origin and the requisite willfulness and malicious intent was established by the performance of the act itself. State v. Bessette, 129 Vt. 87, 271 A.2d 846, 1970 Vt. LEXIS 208 (1970).

Lesser-included offense.

Since this section requires proof of entry and first degree arson does not, the crime of setting fires is not a lesser-included offense of first degree arson. State v. Williams, 154 Vt. 76, 574 A.2d 1264, 1990 Vt. LEXIS 54 (1990).

Vacant dwelling house.

House which had not been occupied as a dwelling for prior year and a half and for which utilities were not currently in operation qualified as an unoccupied or vacant dwelling house under this section, even though house was in the process of renovation for future occupancy and was visited daily by the owner. State v. Williams, 154 Vt. 76, 574 A.2d 1264, 1990 Vt. LEXIS 54 (1990).

Cited.

Cited in State v. Solomon, 144 Vt. 269, 476 A.2d 122, 1984 Vt. LEXIS 458 (1984); State v. Larose, 144 Vt. 492, 479 A.2d 162, 1984 Vt. LEXIS 505 (1984); In re Fadden, 148 Vt. 116, 530 A.2d 560, 1987 Vt. LEXIS 460 (1987); State v. Keith, 160 Vt. 257, 628 A.2d 1247, 1993 Vt. LEXIS 62 (1993); State v. Weller, 162 Vt. 79, 644 A.2d 839, 1994 Vt. LEXIS 51 (1994).

§ 503. Second degree arson.

A person who willfully and maliciously sets fire to or burns or causes to be burned, or who willfully and maliciously aids, counsels, or procures the burning of any building or structure of whatsoever class or character, whether the property of himself or herself or of another, not included or described in section 502 of this title, shall be guilty of arson in the second degree, and shall be imprisoned not more than five years nor less than one year or fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8285. 1947, No. 202 , § 8438. 1935, No. 202 , § 2.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Burden of proof.

In a charge of arson under this section, the burden is on the state to prove there was a burning; that the fire was incendiary and that the defendants willfully and maliciously set fire to the building. State v. Bishop & Jones, 127 Vt. 11, 238 A.2d 772, 1968 Vt. LEXIS 165 (1968).

Establishing corpus delicti.

In order to prove the corpus delicti of arson it is not sufficient to show a burning, which may have been the result of an accident; it must be proved beyond a reasonable doubt that burning was not accidental, but was willfully and maliciously caused by some person who was morally responsible for his actions. State v. Teitle, 117 Vt. 190, 90 A.2d 562, 1952 Vt. LEXIS 124 (1952).

Where evidence at most raised a mere suspicion that fire was incendiary, respondent was entitled to a directed verdict. State v. Foss, 110 Vt. 453, 8 A.2d 648, 1939 Vt. LEXIS 164 (1939).

Mere fact of burning is not sufficient to establish corpus delicti in prosecution for maliciously burning building, for if nothing more appears it will be presumed that fire was result of accident or providential cause, rather than result of criminal design, but incendiarism may be proved by circumstantial evidence. State v. Lizotte, 109 Vt. 378, 197 A. 396, 1938 Vt. LEXIS 144 (1938).

Mere fact of burning is not sufficient to establish corpus delicti in prosecution for maliciously burning building, for if nothing more appears it will be presumed that fire was result of accident of providential cause, rather than result of criminal design, but incendiarism may be proved by circumstantial evidence. State v. Lizotte, 109 Vt. 378, 197 A. 396, 1938 Vt. LEXIS 144 (1938).

In such prosecution, that there were three simultaneous fires, two inside house and one in barn, that direction of wind was not from barn toward house, that windows in house were closed, and that there was no fire in stove, were sufficient to establish corpus delicti, since they would permit jury to find such three fires were not result of accidental or natural causes, but were willful act of some person. State v. Lizotte, 109 Vt. 378, 197 A. 396, 1938 Vt. LEXIS 144 (1938).

Evidence.

Where evidence of the state established that there were no electrical connections in the shanty that burned, no smoking had taken place in the shack, nor were there any open containers of flammable material, jury was permitted to infer that the building did not catch fire in the way it did, and at the time it did, from some accidental or providential cause, but that such fire was incendiary. State v. Bishop & Jones, 127 Vt. 11, 238 A.2d 772, 1968 Vt. LEXIS 165 (1968).

Evidence in arson prosecution was sufficient to support finding that the fire was incendiary and to support conviction of defendants. State v. Bishop & Jones, 127 Vt. 11, 238 A.2d 772, 1968 Vt. LEXIS 165 (1968).

Defendants’ performance of act of burning building was sufficient to establish willfulness and malicious intent. State v. Bishop & Jones, 127 Vt. 11, 238 A.2d 772, 1968 Vt. LEXIS 165 (1968).

If evidence offered to prove arson was entirely circumstantial every reasonable hypothesis must be excluded except that defendants were guilty. State v. Bishop & Jones, 127 Vt. 11, 238 A.2d 772, 1968 Vt. LEXIS 165 (1968).

Cited.

Cited in State v. Bonilla, 144 Vt. 411, 477 A.2d 983, 1984 Vt. LEXIS 488 (1984); State v. Larose, 144 Vt. 492, 479 A.2d 162, 1984 Vt. LEXIS 505 (1984); State v. Parker, 151 Vt. 378, 560 A.2d 383, 1989 Vt. LEXIS 72 (1989).

§ 504. Third degree arson.

A person who willfully and maliciously sets fire to or burns or causes to be burned, or who willfully and maliciously aids, counsels, or procures the burning of any personal property of whatsoever class or character, not less than $25.00 in value and the property of another person, shall be guilty of arson in the third degree, and shall be imprisoned not more than three years nor less than one year, or fined not more than $500.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8286. 1947, No. 202 , § 8439. 1935, No. 202 , § 3.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Construction with other laws.

While monetary threshold contained in this section may be toward the lower end of the absolute scale, it is not so low in comparison to that of a great many states as to remove the Vermont definition of arson from the modern generic definition of arson, for purposes of determining whether a conviction under this section may be counted as “arson” under federal sentencing statute imposing enhanced penalties for possession of firearms by persons convicted of three previous felonies. United States v. Hathaway, 949 F.2d 609, 1991 U.S. App. LEXIS 28430 (2d Cir. 1991), cert. denied, 502 U.S. 1119, 112 S. Ct. 1237, 117 L. Ed. 2d 470, 1992 U.S. LEXIS 1182 (1992).

Elements.

The essential element of third degree arson in Vermont is a wilful and malicious burning of personal property. United States v. Hathaway, 949 F.2d 609, 1991 U.S. App. LEXIS 28430 (2d Cir. 1991), cert. denied, 502 U.S. 1119, 112 S. Ct. 1237, 117 L. Ed. 2d 470, 1992 U.S. LEXIS 1182 (1992).

Cited.

Cited in State v. Smail, 151 Vt. 340, 560 A.2d 955, 1989 Vt. LEXIS 73 (1989); United States v. Hathaway, 757 F. Supp. 324, 1991 U.S. Dist. LEXIS 2663 (D. Vt. 1991).

§ 505. Fourth degree arson.

A person who willfully and maliciously attempts to set fire to or willfully and maliciously attempts to burn or to aid, counsel, or procure the burning of any of the buildings or property mentioned in sections 502-504 of this title, or who willfully and maliciously commits any act preliminary thereto, or in furtherance thereof, shall be guilty of arson in the fourth degree, and shall be imprisoned not more than two years nor less than one year or fined not more than $500.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8287. 1947, No. 202 , § 8440. 1935, No. 202 , § 4.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Information.

An information may charge conjunctively offenses which are enumerated disjunctively in this section. State v. Ciocca, 125 Vt. 64, 209 A.2d 507, 1965 Vt. LEXIS 199 (1965).

Presence at crime.

Actual presence of respondent at the premises is not necessary to constitute a violation of this section. State v. Ciocca, 125 Vt. 64, 209 A.2d 507, 1965 Vt. LEXIS 199 (1965).

Cited.

Cited in State v. Seifert, 151 Vt. 66, 557 A.2d 494, 1989 Vt. LEXIS 23 (1989); State v. Bonfanti, 157 Vt. 625, 603 A.2d 365, 1991 Vt. LEXIS 233 (1991).

§ 506. Burning to defraud insurer.

A person who willfully and with intent to injure or defraud the insurer sets fire to or burns or attempts so to do or who willfully and maliciously causes to be burned or who willfully and maliciously aids, counsels, or procures the burning of any building, structure, or personal property, of whatsoever class or character, whether the property of himself or herself or of another, which shall at the time be insured by any person, company, or corporation against loss or damage by fire, shall be imprisoned not more than five years nor less than one year or fined not more than $500.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8289. 1947, No. 202 , § 8442. 1935, No. 202 , § 6.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Accessory before the fact.

Fact that persons employed by respondent did not actually burn the premises in question does not relieve respondent of guilt as an accessory before the fact to attempted arson under this section. State v. Ciocca, 125 Vt. 64, 209 A.2d 507, 1965 Vt. LEXIS 199 (1965).

Elements of offense.

Under this section it is a crime to procure an attempted burning as well as an actual burning. State v. Ciocca, 125 Vt. 64, 209 A.2d 507, 1965 Vt. LEXIS 199 (1965).

Jurisdiction.

In the case of defendant convicted of counseling burning of his automobile to defraud his insurer, since the arrangements for burning the automobile were made with the accomplices who actually did it in Vermont and defendant left the automobile with the keys in it and a note of instruction to his accomplices at his Vermont worksite, trial court correctly exercised jurisdiction over the offense charged, notwithstanding the fact that the burning took place in New Hampshire. State v. Mosher, 143 Vt. 197, 465 A.2d 261, 1983 Vt. LEXIS 500 (1983).

Cited.

Cited in State v. Bonilla, 144 Vt. 411, 477 A.2d 983, 1984 Vt. LEXIS 488 (1984).

§ 507. Burning forests.

A person who willfully and maliciously sets on fire, or causes to be set on fire, woods or forest, so as to occasion injury to another person, shall be imprisoned not more than five years or fined not more than $500.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8290. P.L. § 8426. G.L. § 6856. P.S. § 5750. V.S. § 4934. R.L. § 4132. G.S. 113, § 38. R.S. 95, § 22. R. 1797, p. 190, § 5.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

§ 508. Setting fires.

A person who enters upon lands of another and sets a fire that causes damage shall be imprisoned not more than 60 days nor less than 30 days or fined not more than $100.00 nor less than $10.00, or both. The provisions of this section shall not affect the provisions of section 507 of this title.

HISTORY: Amended 1981, No. 223 (Adj. Sess.), § 23; 2019, No. 77 , § 9.

History

Source.

V.S. 1947, § 8291. 1947, No. 202 , § 8444. P.L. § 8427. G.L. § 6857. 1908, No. 166 .

References in text.

Section 3906 of this title, referred to in this section, was repealed by 2017, No. 105 (Adj. Sess.), § 2.

Amendments

—2019. Substituted “section” for “sections” following “the provisions of,” and deleted “and 3906” in the second sentence.

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

ANNOTATIONS

Lesser-included offense.

Since this section requires proof of entry and first degree arson does not, the crime of setting fires is not a lesser-included offense of first degree arson. State v. Williams, 154 Vt. 76, 574 A.2d 1264, 1990 Vt. LEXIS 54 (1990).

§ 509. Attempts.

The placing or distributing of any inflammable, explosive, or combustible material or substance, or any device, in any building or property mentioned in sections 502-505 of this title in any arrangement or preparation with intent willfully and maliciously to set fire to or burn the same, or to procure the setting fire to or burning of the same shall, for the purposes of this chapter, constitute an attempt to burn such building or property.

History

Source.

V.S. 1947, § 8288. 1935, No. 202 , § 5.

ANNOTATIONS

Elements of attempt.

When respondent was discovered under circumstances where striking of a match would have consummated the arson, there was sufficient evidence to support submission of the charge of attempted arson to the jury under the rule that the preparation must be such that it would be likely to end in the consummation of the crime if not extraneously interrupted. State v. Woodmansee, 124 Vt. 387, 205 A.2d 407, 1964 Vt. LEXIS 119 (1964).

Persons liable.

If the person solicited to commit a felony does any act which makes him guilty of an attempt, the person soliciting is also liable for the attempt. State v. Ciocca, 125 Vt. 64, 209 A.2d 507, 1965 Vt. LEXIS 199 (1965).

Chapter 13. Assaults

§§ 601-607. Repealed. 1971, No. 222 (Adj. Sess.), § 7, eff. April 5, 1972.

History

Former §§ 601-607. Former §§ 601-607, related to assaults. Such subject is now covered by § 608 of this title.

Prior to repeal former §§ 601-607 were amended by 1971, No. 199 (Adj. Sess.), § 15. For previous source of such sections reference should be made to former Volume 5 V.S.A.

§ 608. Assault and robbery.

  1. A person who assaults another and robs, steals, or takes from his or her person or in his or her presence money or other property that may be the subject of larceny shall be imprisoned for not more than 10 years.
  2. A person who, being armed with a dangerous weapon, assaults another and robs, steals, or takes from his or her person or in his or her presence money or other property that may be the subject of larceny shall be imprisoned for not more than 15 years nor less than one year.
  3. If in the attempt or commission of an offense under subsection (a) or (b) of this section, a person causes bodily injury, such person shall be imprisoned for not more than 20 years nor less than one year.  Any penalty imposed under this subsection shall be in lieu of any penalty imposed under subsection (a) or (b) of this section.

HISTORY: Added 1973, No. 73 , eff. 30 days from April 14, 1973.

ANNOTATIONS

Elements of offense.

State’s burden in assault and robbery prosecution was to prove that defendant intentionally put victim in fear of imminent, serious bodily injury and intentionally deprived him of money, intending to do so permanently. State v. Powell, 158 Vt. 280, 608 A.2d 45, 1992 Vt. LEXIS 37 (1992).

Specific intent to deprive person of property permanently is an element of offense of assault and robbery. State v. Francis, 151 Vt. 296, 561 A.2d 392, 1989 Vt. LEXIS 79 (1989).

Assault component of this section incorporates the elements of assault as defined in sections 1023 and 1021 of this title. State v. Francis, 151 Vt. 296, 561 A.2d 392, 1989 Vt. LEXIS 79 (1989).

Conviction for attempted assault and robbery requires proof that the accused intended to permanently deprive victim of property taken. State v. Dennis, 151 Vt. 223, 559 A.2d 670, 1989 Vt. LEXIS 39 (1989).

Trial court did not err in refusing defendant’s request to instruct jury that defendant could be convicted of aiding in the commission of a felony (bank robbery) only if he had the intent of permanently depriving the bank of its property, even though court’s view of the intent element for assault and robbery was erroneous and the defendant’s view was correct, where court’s instruction on accessory liability was correct and specifically stated that defendant could be convicted only if he acted with same intent as that required for his accomplice. State v. Davignon, 152 Vt. 209, 565 A.2d 1301, 1989 Vt. LEXIS 149 (1989).

As a matter of law, a gun, whether loaded or unloaded, is a dangerous weapon when used in the commission of a robbery; actual danger is not an element of the offense of assault and robbery with a dangerous weapon. State v. Parker, 139 Vt. 179, 423 A.2d 851, 1980 Vt. LEXIS 1502 (1980).

Evidence.

Defendant failed in his argument that he took the gun from the victims to kill himself and, therefore, he did not intend to permanently deprive them of the gun because the evidence also showed that he intended to dispose of the gun such that he would not have had the ability to return the gun or ensure that it would be returned. State v. Little, 2004 VT 119, 177 Vt. 612, 868 A.2d 686, 2004 Vt. LEXIS 390 (2004) (mem.).

Defendant was properly convicted for two crimes, larceny from the person and attempted assault and robbery, where he committed larceny from the person of one victim by ripping a necklace with a coin off of her neck, and attempted assault and robbery by threatening to shoot that victim and her husband to gain access to their safe and its contents. State v. Setien, 173 Vt. 576, 795 A.2d 1135, 2002 Vt. LEXIS 1 (2002) (mem.).

Since attempted assault and robbery is a specific intent crime, evidence of intoxication may be considered to determine whether the accused acted with the required mental state for conviction. State v. Dennis, 151 Vt. 223, 559 A.2d 670, 1989 Vt. LEXIS 39 (1989).

Indictment and information.

Information charging assault and robbery under subsec. (a) of this section was not defective for failure to state that defendant committed offense intentionally. State v. Francis, 151 Vt. 296, 561 A.2d 392, 1989 Vt. LEXIS 79 (1989).

Where original information charged larceny and on day of trial, immediately before drawing of jury, court allowed amendment to charge additional element of assault. and thus armed robbery, an additional or different offense was clearly charged by the amended information, and it was error to refuse to grant request for continuance. State v. Holden, 136 Vt. 158, 385 A.2d 1092, 1978 Vt. LEXIS 708 (1978).

Instructions.

Crime of assault and robbery involves an implied element of intent permanently to deprive owner of property taken, but omission of implied element from charge is generally not plain error. State v. Gabert, 152 Vt. 83, 564 A.2d 1356, 1989 Vt. LEXIS 132 (1989).

Jury instruction which failed to properly explain intent element of assault and robbery did not rise to level of plain error where question as to whether person who took victim’s money had intent to deprive him of it permanently was not close or difficult. State v. Francis, 151 Vt. 296, 561 A.2d 392, 1989 Vt. LEXIS 79 (1989).

Although assault is an essential element of the crime of assault and robbery, court’s failure to issue separate instruction on assault as an element of robber trial for felony murder was not erroneous where the assault amounted to murder, whose elements had been fully explained to jury. State v. Wright, 154 Vt. 512, 581 A.2d 720, 1989 Vt. LEXIS 280 (1989), cert. denied, 498 U.S. 1032, 111 S. Ct. 692, 112 L. Ed. 2d 682, 1991 U.S. LEXIS 27 (1991).

Cited.

Cited in State v. Moran, 141 Vt. 10, 444 A.2d 879, 1982 Vt. LEXIS 481 (1982); State v. Billado, 141 Vt. 175, 446 A.2d 778, 1982 Vt. LEXIS 493 (1982); State v. Savo, 141 Vt. 203, 446 A.2d 786, 1982 Vt. LEXIS 499 (1982); State v. Williams, 142 Vt. 81, 451 A.2d 1142, 1982 Vt. LEXIS 603 (1982); State v. Shores, 143 Vt. 224, 465 A.2d 269, 1983 Vt. LEXIS 481 (1983); State v. Boucher, 144 Vt. 276, 478 A.2d 218, 1984 Vt. LEXIS 448 (1984); State v. Chambers, 144 Vt. 377, 477 A.2d 974, 1984 Vt. LEXIS 485 (1984); In re Bruyette, 150 Vt. 557, 556 A.2d 568, 1988 Vt. LEXIS 217 (1988); State v. Clark, 152 Vt. 395, 566 A.2d 1346, 1989 Vt. LEXIS 178 (1989); State v. Kasper, 152 Vt. 435, 566 A.2d 982, 1989 Vt. LEXIS 191 (1989); State v. Villeneuve, 155 Vt. 360, 584 A.2d 1123, 1990 Vt. LEXIS 234 (1990); State v. Gilman, 158 Vt. 210, 608 A.2d 660, 1992 Vt. LEXIS 35 (1992).

Chapter 15. Barratry

§ 701. Penalty.

A person who is a common barrator shall be fined not more than $50.00 and become bound with sufficient surety for his or her good behavior for not less than one year.

History

Source.

V.S. 1947, § 8527. P.L. § 8665. G.L. § 7060. P.S. § 5920. V.S. § 5093. R.L. § 4275. G.S. 119, § 8.

Chapter 17. Blasphemy and Defamation

§§ 801, 802. Repealed. 1979, No. 152 (Adj. Sess.).

History

Former §§ 801, 802. Former § 801, relating to blasphemy, was derived from V.S. 1947, § 8493; P.L. § 8624; G.L. § 8024; P.S. § 5896; V.S. § 5070; R.L. § 4253; G.S. 117, § 14; R.S. 99, § 11; 1818, p. 11; R. 1797, p. 163, § 20 and R. 1787, p. 68.

Former § 802, relating to defamation, was derived from V.S. 1947, § 8494; P.L. § 8626; G.L. § 7026; P.S. § 5898; V.S. § 5072; R.L. § 4255; G.S. 117, § 15; R.S. 99, § 12; 1818, p. 14; R. 1797, p. 166, § 26 and R. 1787, p. 46.

Chapter 19. Breach of the Peace; Disturbances

Subchapter 1. Riots

§ 901. Duties of officers.

A Superior Court judge, sheriff, deputy sheriff, or constable having notice or knowledge of the unlawful, tumultuous, or riotous assemblage of three or more persons within his or her jurisdiction, among or as near as he or she can safely come to such rioters, shall command them in the name of the State of Vermont immediately and peaceably to disperse. If after such command the rioters do not disperse, such officer or magistrate and any other person as he or she commands to assist him or her shall apprehend and forthwith take them before a Criminal Division of a Superior Court.

HISTORY: Amended 1965, No. 194 , § 10, operative February 1, 1967; 1973, No. 249 (Adj. Sess.), § 43, eff. April 9, 1974; 2009, No. 154 (Adj. Sess.), § 96.

History

Source.

V.S. 1947, § 8450. P.L. § 8585. 1933, No. 157 , § 8228. G.L. § 6990. 1908, No. 62 . P.S. § 5863. V.S. § 5036. R.L. § 4221. G.S. 116, §§ 2, 3. R.S. 98, §§ 2, 3. 1821, pp. 8, 9. R. 1797, p. 183, §§ 15, 16. R. 1787, pp. 132, 133.

Amendments

—2009 (Adj. Sess.) Substituted “superior judge” for “district judge” in the first sentence, “any” for “such” preceding “other person”, and “criminal division of a superior” for “district” preceding “court” in the last sentence, and made minor changes in punctuation.

—1973 (Adj. Sess.). Omitted references to “a justice”.

—1965. Substituted “district” for “municipal” judge and court.

§ 902. Rioters refusing to disperse.

Persons so unlawfully and riotously assembled who, after proclamation made, do not immediately disperse, and persons unlawfully and riotously assembled to the number of three or more who do an unlawful act against a man’s person or property or against the public interest, and persons present at the place of an unlawful or riotous assemblage who, when commanded by a magistrate or officer to assist him or her or to leave the place of such riotous assemblage, fails so to do, shall each be imprisoned not more than six months or fined not more than $100.00, or both.

History

Source.

V.S. 1947, § 8451. P.L. § 8586. G.L. § 6991. P.S. § 5864. V.S. § 5037. R.L. § 4222. G.S. 116, §§ 4, 5. R.S. 98, §§ 4, 5. 1821, p. 8. R. 1797, p. 183, § 15. R. 1787, p. 132.

§ 903. Hindering officer.

A person who, with force and arms, willfully and knowingly obstructs or in any manner hinders or hurts a person attempting to make proclamation against a riot, shall be punished as provided in section 902 of this title. Persons riotously assembled to whom proclamation would be made if the same were not hindered, who having knowledge of such hindrance do not immediately disperse, shall be imprisoned not more than six months or fined not more than $100.00, or both.

HISTORY: Amended 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8452. P.L. § 8587. G.L. § 6992. P.S. § 5865. V.S. § 5038. R.L. § 4223. G.S. 116, §§ 8, 9. R.S. 98, §§ 8, 9. 1821, p. 10. R. 1797, p. 184, § 18. R. 1787, p. 134.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

§ 904. Officer killing resisting rioter, not liable.

Officers, and persons assisting them, in lawfully dispersing or apprehending such rioters, shall not be liable in a civil or criminal proceeding if a rioter, by reason of his or her resistance, is killed or injured.

History

Source.

V.S. 1947, § 8453. P.L. § 8588. G.L. § 6993. P.S. § 5866. V.S. § 5039. R.L. § 4424. G.S. 116, § 6. R.S. 98, § 6. 1821, p. 10. R. 1797, p. 184, § 17. R. 1787, p. 133.

§ 905. Rioters injuring building or vessel.

Persons riotously assembled who destroy or injure a dwelling house or other building, steamboat, or vessel shall each be imprisoned not more than five years and fined not more than $1,000.00, or both, and be answerable to the person injured for the damages in a civil action.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8454. P.L. § 8589. G.L. § 6994. P.S. § 5867. V.S. § 5040. R.L. § 4225. G.S. 116, § 7. R.S. 98, § 7.

Revision note—

Substituted “a civil action” for “an action of tort” to conform to Rule 2, Vermont Rules of Civil Procedure, pursuant to 1971, No. 185 (Adj. Sess.), § 236(d).

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

Subchapter 2. Labor and Employment Disturbances

§§ 931-933. Repealed. 1971, No. 222 (Adj. Sess.), § 7, eff. April 5, 1972.

History

Former §§ 931-933. Former §§ 931-933 related to labor and employment disturbances. Former §§ 931, 932 were derived from V.S. 1947, §§ 8455, 8456; P.L. §§ 8590, 8591; G.L. §§ 6995, 6996; P.S. §§ 5868, 5869; V.S. §§ 5041, 5042; R.L. §§ 4226, 4227; 1867, S., No. 6, §§ 1, 2. Former § 933 was derived from V.S. 1947, § 8457; 1937, No. 210 , § 1.

Subchapter 3. Disturbing Religious Meetings

§§ 971-973. Repealed. 1971, No. 222 (Adj. Sess.), § 7, eff. April 5, 1972.

History

Former §§ 971-973. Former §§ 971-973 related to disturbing religious meetings and were derived from V.S. 1947, §§ 8460, 8464, 8465; P.L. §§ 8594, 8598, 8599; G.L. §§ 6999, 7003, 7004; 1908, No. 62 ; 1910, No. 91 , § 5; P.S. §§ 5872, 5876, 5877; V.S. §§ 5045, 5050, 5051; R.L. §§ 4231-4233; G.S. 93, §§ 5, 6, 8, 9; R.S. 82, §§ 5, 6, 9, 10; 1827, No. 25 , §§ 1, 2; 1819, pp. 20, 21; R. 1797, p. 197, § 2, p. 198, p. 7; R. 1787, pp. 134, 135.

§§ 974-976. Repealed. 1959, No. 262, § 37, eff. June 11, 1959.

History

Former §§ 974-976. Former §§ 974-976 related to disturbing religious meetings and were derived from V.S. 1947, §§ 8575, 8577, 8578; P.L. §§ 8709, 8711, 8712; G.L. §§ 7100-7102; 1910, No. 91 , § 9; P.S. §§ 5958-5960; R. 1906, § 5836; V.S. §§ 5143-5145; R.L. §§ 4317-4319; 1874, No. 65 ; 1863, No. 9 ; G.S. 93, §§ 7-9; 1840, No. 6 ; R.S. 82, §§ 7-10; 1827, No. 25 , § 2; 1819, pp. 20, 21.

Sections 974-976 and 1052 of this title were repealed following revision commission’s recommendation that they were possibly obsolete as covered by breach of the peace statutes.

Subchapter 4. Other Disturbances of the Peace

§ 1021. Definitions.

  1. As used in this chapter:
    1. “Bodily injury” means physical pain, illness, or any impairment of physical condition.
    2. “Serious bodily injury” means:
      1. bodily injury that creates any of the following:
        1. a substantial risk of death;
        2. a substantial loss or impairment of the function of any bodily member or organ;
        3. a substantial impairment of health; or
        4. substantial disfigurement; or
      2. strangulation by intentionally impeding normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person.
    3. “Deadly weapon” means any firearm, or other weapon, device, instrument, material, or substance, whether animate or inanimate that in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.
  2. As used in this subchapter, “course of conduct” means a pattern of conduct composed of two or more acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of “course of conduct.”

HISTORY: Amended 1971, No. 222 (Adj. Sess.), § 1, eff. April 5, 1972; 1993, No. 95 , § 3; 2005, No. 192 (Adj. Sess.), § 6, eff. May 26, 2006; 2013, No. 150 (Adj. Sess.), § 2; 2015, No. 162 (Adj. Sess.), § 4.

History

Source.

1957, No. 178 . V.S. 1947, § 8458. P.L. § 8592. G.L. § 6997. P.S. § 5870. 1906, No. 200 , § 8. 1898, No. 120 , § 1. V.S. § 5043n. R.L. § 4228. G.S. 116, § 1. R.S. 98, § 1. 1826, No. 14 , § 1. 1821, p. 12. R. 1797, p. 187, § 21. 1788, p. 9.

Amendments

—2015 (Adj. Sess.). Designated the introductory language as subsec. (a) and substituted “As used in” for “For the purpose of”, added subdivs. (a)(1) through (1)(3) designations, and redesignated former subdiv. (4) as subsec. (b) and added “As used in this subchapter” preceding “ ‘Course of conduct’ ” in the first sentence.

—2013 (Adj. Sess.). Subdiv. (4): Added.

—2005 (Adj. Sess.). Subdiv. (2)(A): Added the subdiv. (i)-(iv) designations and inserted “any of the following” following “creates” in subdiv. (2)(A).

Subdiv. (2)(A)(i): Deleted “or which causes” following “death”.

Subdiv. (2)(B): Added.

—1993. Substituted “chapter” for “subchapter” in the introductory paragraph, “substantial loss” for “serious, permanent disfigurement, or protracted loss” following “causes” and added “or substantial impairment of health, or substantial disfigurement” following “organ” in subdiv. (2).

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Generally.

Though it has become customary in jurisprudence to refer to the term “assault and battery” as though it were a legal unit, a single concept, assault and battery are not synonymous terms. State v. Murphy, 128 Vt. 288, 262 A.2d 456, 1970 Vt. LEXIS 224 (1970).

Public peace is that sense of security and tranquility which every person feels under protection of law and breach of peace is an invasion of protection which law thus affords. State v. Sanderson, 123 Vt. 214, 185 A.2d 730, 1962 Vt. LEXIS 226 (1962).

Arrest and search.

Police officer had reasonable grounds to request that defendant leave auto where officer was acting on police dispatcher’s notification that the owner of the auto had complained that a man was in his auto and would not leave, and arrest for offense committed under this section in officer’s presence was authorized where defendant refused to leave, left only after being maced and then used obscene language and threatened to kill officer. State v. Murphy, 128 Vt. 288, 262 A.2d 456, 1970 Vt. LEXIS 224 (1970).

Assault.

An assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present, and although physical contact is not an essential element, violence, threatened or offered, is. State v. Murphy, 128 Vt. 288, 262 A.2d 456, 1970 Vt. LEXIS 224 (1970).

To sustain a criminal complaint for assault it is not the secret intent of the accused or the undisclosed fact of his ability or inability to commit battery that is material, but rather, what his conduct and the attending circumstances denote at the time to the person assaulted. State v. Murphy, 128 Vt. 288, 262 A.2d 456, 1970 Vt. LEXIS 224 (1970).

Simple assault is not a “specific intent” offense. State v. Murphy, 128 Vt. 288, 262 A.2d 456, 1970 Vt. LEXIS 224 (1970).

Burden of proof.

Evidence tending to show that defendant was first assaulted put the burden on the state to prove beyond a reasonable doubt that defendant’s acts were not in self-defense. State v. Dragon, 128 Vt. 568, 268 A.2d 913, 1970 Vt. LEXIS 275 (1970).

—Breach of peace.

The term breach of peace is generic and includes all violations of the public peace or order. State v. Wixon, 118 Vt. 495, 114 A.2d 410, 1955 Vt. LEXIS 116 (1955); State v. Thompson, 117 Vt. 70, 84 A.2d 594, 1951 Vt. LEXIS 103 (1951); State v. Christie, 97 Vt. 461, 123 A. 849, 1924 Vt. LEXIS 184 (1924); State v. Mancini, 91 Vt. 507, 101 A. 581, 1917 Vt. LEXIS 275 (1917).

It was not required that person threatened should necessarily be put in fear to constitute a breach of peace. State v. Wixon, 118 Vt. 495, 114 A.2d 410, 1955 Vt. LEXIS 116 (1955).

In order to secure a conviction on charge of breach of the peace the state must show more than a mere possibility that the respondent’s act might produce violence or a disturbance of public peace. State v. Thompson, 117 Vt. 70, 84 A.2d 594, 1951 Vt. LEXIS 103 (1951).

The use of loud, profane and obscene language upon public highway in presence of others comes within definition of “tumultuous and offensive carriage” as used in V.S. § 458. State v. Ploof, 116 Vt. 93, 70 A.2d 575, 1950 Vt. LEXIS 114 (1950).

Evidence that respondent, after midnight, went along highway past houses occupied by non-union workmen and their families, shouting “scab,” “bozo,” and “rats,” to annoyance, disturbance, and alarm of people living therein, warranted a conviction. State v. Christie, 97 Vt. 461, 123 A. 849, 1924 Vt. LEXIS 184 (1924).

Threats of great bodily harm, accompanied by acts showing a formed intention to put them in execution, if intended to put person threatened in fear of their execution, and if they had that effect, and were calculated to produce that effect upon a person of ordinary firmness, constituted a breach of public peace, which was punishable by indictment. State v. Benedict, 11 Vt. 236, 1839 Vt. LEXIS 56 (1839).

An indictment for sending a written challenge to fight a duel will not lie under this section as originally passed March 4th, 1797. State v. S.S., 1 Tyl. 180 (Vt. June 1, 1801).

Deadly weapon.

Because an object can be found to be a deadly weapon if it is objectively capable of causing harm, the box cutter here, which defendant was using to cut boxes and which thus could be understood to have sharp edges and to be capable of producing death or serious injury despite its unusual design, was a deadly weapon for purposes of conviction under the domestic assault statute. State v. Kuzawski, 2017 VT 118, 206 Vt. 351, 181 A.3d 62, 2017 Vt. LEXIS 143 (2017).

Firearm employed in a threat against a family or household member need not be shown to be operable or loaded to constitute a deadly weapon; in the context of first-degree aggravated domestic assault, it is entirely irrelevant if a rifle brandished to punctuate a threat was loaded and able to fire when the threat was made, because this crime does not require an imminent threat. Consequently, a firearm did not have to be proven to be loaded and operable, immediately or otherwise, to constitute a deadly weapon in a prosecution for first-degree aggravated domestic assault, and the trial court did not err by omitting such a requirement in its instructions to the jury. State v. Longley, 2007 VT 101, 182 Vt. 452, 939 A.2d 1028, 2007 Vt. LEXIS 265 (2007).

Elements of offense.

An act can create the requisite “substantial risk of death” without causing permanent physical damage; choking is a good example of such an act. State v. Carpenter, 155 Vt. 59, 580 A.2d 497, 1990 Vt. LEXIS 123 (1990).

An actual offer to use force to injure another is an assault, and the use of it is a battery. State v. Murphy, 128 Vt. 288, 262 A.2d 456, 1970 Vt. LEXIS 224 (1970).

It is not required that the person threatened must necessarily be put in fear to constitute a breach of peace. State v. Murphy, 128 Vt. 288, 262 A.2d 456, 1970 Vt. LEXIS 224 (1970).

Violation of this statute was supported by evidence that defendant, who had refused to leave auto not belonging to him upon request by police to do so, assaulted police officer both while in and out of auto by saying that he would kill him, and battered officer by striking him after he had left auto. State v. Murphy, 128 Vt. 288, 262 A.2d 456, 1970 Vt. LEXIS 224 (1970).

Although terror usually accompanies crime of breach of peace in its aggravated form, fear is not an essential ingredient of offense, controlling factor being found in background and circumstances which attend alleged offense. State v. Sanderson, 123 Vt. 214, 185 A.2d 730, 1962 Vt. LEXIS 226 (1962).

Evidence.

Trial court properly denied defendant’s motion for judgment of acquittal of domestic assault. During a 911 recording, the complainant identified defendant and stated that she was beaten with his fists; the evidence contained in the 911 recording was supported by the responding officers’ testimony and the photographs depicting the complainant’s injuries; the evidence was sufficient to establish that by striking the complainant, defendant consciously disregarded a substantial and unjustifiable risk of bodily injury; and the evidence admitted could reasonably convince a jury that the cut above the complainant’s eye was a “bodily injury” and that the complainant was a household member. State v. Kelley, 2016 VT 58, 202 Vt. 174, 148 A.3d 191, 2016 Vt. LEXIS 57 (2016).

Evidence showing that the victim sustained a black eye, numerous bruises and abrasions, injury to her back, and two facial lacerations, one resulting in a permanent scar, was sufficient for the jury to conclude the victim sustained “substantial disfigurement.” State v. Muscari, 174 Vt. 101, 807 A.2d 407, 2002 Vt. LEXIS 150 (2002).

Although the victim’s permanent facial scar was not perceivable by the jury from across the courtroom, and the other injuries were temporary, the evidence was sufficient for the jury to conclude the victim sustained “substantial disfigurement”; neither visibility from a distance nor permanency is requisite to substantial disfigurement. State v. Muscari, 174 Vt. 101, 807 A.2d 407, 2002 Vt. LEXIS 150 (2002).

Jury’s determination of substantial disfigurement was not required to be supported by expert medical testimony because whether proof of an element of a crime meets the standard of “substantial” is not a medical determination, but is a question of fact for the jury. State v. Muscari, 174 Vt. 101, 807 A.2d 407, 2002 Vt. LEXIS 150 (2002).

In a prosecution for aggravated domestic assault, the trial court did not err in denying defendant’s motion for judgment of acquittal on the basis that there was insufficient evidence that the knife used in the assault was a deadly weapon, even though the knife itself was not entered in evidence, and the State instead relied entirely on the victim’s testimony to prove this element of the crime. State v. Prior, 174 Vt. 49, 804 A.2d 770, 2002 Vt. LEXIS 135 (2002).

Evidence was sufficient for jury to reasonably find that assault victim’s injuries, as well as his increased risk of glaucoma, constituted “serious bodily injury,” and therefore defendant’s motion for judgment of acquittal was properly denied. State v. Allen, 169 Vt. 615, 738 A.2d 113, 1999 Vt. LEXIS 226 (1999) (mem.).

In prosecution for aggravated assault in which “substantial risk of death” is sought to be proved, expert medical testimony is not required to prove a victim is in substantial danger of death when medical expert testifies victim was choked to the point of passing out. State v. Carpenter, 155 Vt. 59, 580 A.2d 497, 1990 Vt. LEXIS 123 (1990).

Motion for acquittal at trial for aggravated assault was properly denied, based on testimony that defendant repeatedly forced adopted stepdaughter’s head into bucket of water, that victim was unable to breathe, that defendant choked her and that she lost consciousness and vomited blood. State v. Carpenter, 155 Vt. 59, 580 A.2d 497, 1990 Vt. LEXIS 123 (1990).

Acquittal of defendant on sexual assault charge did not render his conviction on charge of aggravated assault logically inconsistent, where evidence was sufficient to show defendant submersed victim’s head in a bucket of water and choked her in an attempt to silence her about actions he had good reason to believe constituted a sexual offense. State v. Carpenter, 155 Vt. 59, 580 A.2d 497, 1990 Vt. LEXIS 123 (1990).

Force in defense of self or property.

A person does not have the right to use physical force in defense of his property against a person legally on the premises unless he has first asked him to leave and given him a reasonable opportunity to do so. State v. Bogie, 125 Vt. 414, 217 A.2d 51, 1966 Vt. LEXIS 203 (1966).

While unlawful arrest may be lawfully resisted, right of resistance, being in nature of self-defense, permits arrested person to use only such amount of force as reasonably appears to him to be necessary under circumstances. State v. Malnati, 109 Vt. 429, 199 A. 249, 1938 Vt. LEXIS 151 (1938).

Where court charged that a person in charge of property delivered to him to be kept is not justified in assaulting a trespasser in the first instance but must first require trespasser to depart, and then use only such force as is reasonably necessary to expel him, but if trespasser first uses violence, then person in charge, without a request to depart, may use violence in return; exception taken thereto on ground that notice is not necessary before person in charge may proceed to expel trespasser by force is not good. State v. Bean, 107 Vt. 513, 180 A. 882, 1935 Vt. LEXIS 207 (1935).

Impairment of physical condition.

Cuts police officer received on his hand during altercation with person he was arresting were “an impairment of physical condition” under this section, though they were not serious. State v. Allen, 139 Vt. 303, 427 A.2d 373, 1981 Vt. LEXIS 449 (1981).

Instructions.

Trial court was not required to instruct the jury on all four disjunctive elements of “serious bodily injury” where there was no evidence to support two of those elements. State v. Muscari, 174 Vt. 101, 807 A.2d 407, 2002 Vt. LEXIS 150 (2002).

Trial court’s instruction on the medical expert testimony was proper where its purpose was to inform the jury that what is “serious bodily injury” is for the jury to decide, not anyone else; although an expert is allowed to testify as to the ultimate issue to be decided, that testimony is not entitled to any particular reverence; rather it is the province of the jury to determine what weight to accord expert witness testimony. State v. Muscari, 174 Vt. 101, 807 A.2d 407, 2002 Vt. LEXIS 150 (2002).

Charge that breach of the peace may be committed by acts or statements likely to produce violence and disturbance of good order although such is not intended, that a design to inflict the precise injury is not essential, that personal injury through reckless conduct may constitute assault and battery although there was no actual intent to inflict injury, and that an assault is an attempt or offer with force or violence or do bodily harm to another under circumstances denoting at the time an intention to do so coupled with a present ability to effect the intent, that an assault may go further than threatening motions such as a clenched fist under circumstances indicating actual intent to do harm with present ability to do it, and that an assault may be, and usually is, committed by the actual and intentional application of physical force, considered in its entirety, had general tenor that a demonstration of unlawful intent, rather than actual intent, constitutes the offense, and was not error. State v. Murphy, 128 Vt. 288, 262 A.2d 456, 1970 Vt. LEXIS 224 (1970).

Trial court properly charged that voluntary intoxication was not a defense available to defendant accused of disturbing and breaking the public peace by assaulting, beating and striking a police officer. State v. Murphy, 128 Vt. 288, 262 A.2d 456, 1970 Vt. LEXIS 224 (1970).

Operation of motor vehicle.

Public peace may be transgressed by reckless, offensive operation of motor vehicle in such manner as to endanger safety and security of persons lawfully on or near highway. State v. Sanderson, 123 Vt. 214, 185 A.2d 730, 1962 Vt. LEXIS 226 (1962).

Self-defense.

Where defendant did not strike the first blow, he had the right to use sufficient force to repel the attack made upon him. State v. Dragon, 128 Vt. 568, 268 A.2d 913, 1970 Vt. LEXIS 275 (1970).

An assailed person may beat his assailant so far as to make him desist, but cannot take his life or inflict great bodily harm unless he reasonably apprehends death or great bodily harm to himself, and does not have other means of avoiding the attack that appear to him at the time as sufficient and available and they are in fact not sufficient and available. State v. Dragon, 128 Vt. 568, 268 A.2d 913, 1970 Vt. LEXIS 275 (1970).

The amount of force one is justified in using in self-defense is that which reasonably appears to him to be necessary under all the circumstances, and whether one was justified in the particular occasion to use the force used depends upon whether the jury finds that it reasonably appeared to him that it was necessary to use it. State v. Dragon, 128 Vt. 568, 268 A.2d 913, 1970 Vt. LEXIS 275 (1970).

Serious bodily injury.

By its 1993 amendment of the definition of “serious bodily injury,” the legislature intended that a conviction for aggravated assault can be sustained on evidence of “substantial disfigurement” that need not be “serious, permanent disfigurement.” State v. Muscari, 174 Vt. 101, 807 A.2d 407, 2002 Vt. LEXIS 150 (2002).

Sufficiency of complaint.

Complaint alleging that the respondent disturbed and broke the public peace by tumultuous and offensive carriage, in that he ran an automobile upon a public highway at a high rate of speed and in a dangerous, reckless and riotous manner, and in a manner to imperil the safety, peace and security of persons then using the highway, and put them in great fear of bodily harm, sufficiently charged a breach of the peace by tumultuous and offensive carriage, within the meaning of P.S. 5870. State v. Boyd, 91 Vt. 88, 99 A. 515, 1917 Vt. LEXIS 211 (1917).

Complaint which charges a breach of the peace by “threatening to strike, beat, injure and assault divers and sundry persons,” without naming them or alleging that their names are unknown, was bad on general demurrer. State v. Bruce, 69 Vt. 98, 37 A. 238 (1896), same case 68 Vt. 183, 34 A. 701.

Complaint that respondent “did disturb and break the public peace by tumultuous and offensive carriage, by firing guns, blowing horns, and beating tin pans,” charged offense. State v. Coffin, 64 Vt. 25, 23 A. 632, 1891 Vt. LEXIS 54 (1891); State v. Hanley, 47 Vt. 290, 1875 Vt. LEXIS 12 (1875).

Complaint charging an assault and battery, with force and arms, against form of statute and peace of state, etc., was a charge of a breach of the public peace. State v. Barrows, 57 Vt. 576, 1885 Vt. LEXIS 99 (1885).

The omission of “vi et armis” was not fatal, when averments in English showed that criminal act was committed with force and violence. State v. Hanley, 47 Vt. 290, 1875 Vt. LEXIS 12 (1875).

Complaint that respondents did break and disturb public peace by ringing a certain church bell, and, well knowing that one P was then living, did report and aver that P was dead and was to be buried on the next day and did ring the said bell with intent to have it believed that the said P was then dead and with intent to annoy, harass and vex the said P, and his family and friends, was insufficient. State v. Riggs, 22 Vt. 321, 1850 Vt. LEXIS 35 (1850).

Sufficiency of information.

Where a person is equally well known by either of two names, an indictment for an assault and battery, charging him by either of such names, is sufficient. In re Crepeault, 126 Vt. 544, 236 A.2d 644, 1967 Vt. LEXIS 237 (1967).

Allegation in an information that respondent “did then and there willfully and unlawfully disturb and break the public peace by assaulting another person, to wit . . .” is sufficient to support a conviction for breach of the peace. State v. Goodsell, 122 Vt. 99, 165 A.2d 356, 1960 Vt. LEXIS 110 (1960).

Cited.

Cited in State v. Francis, 151 Vt. 296, 561 A.2d 392, 1989 Vt. LEXIS 79 (1989); State v. Sorrell, 152 Vt. 543, 568 A.2d 376, 1989 Vt. LEXIS 197 (1989); State v. Papazoni, 159 Vt. 578, 622 A.2d 501, 1993 Vt. LEXIS 9 (1993); State v. Harrington, 174 Vt. 584, 816 A.2d 501, 2002 Vt. LEXIS 333 (2002); State v. Turner, 2003 VT 73, 175 Vt. 595, 830 A.2d 122, 2003 Vt. LEXIS 148 (2003); State v. Baron, 2004 VT 20, 176 Vt. 314, 848 A.2d 275, 2004 Vt. LEXIS 23 (2004) (mem.).

§ 1022. Noise in the nighttime.

A person who, between sunset and sunrise, disturbs and breaks the public peace by firing guns, blowing horns, or other unnecessary and offensive noise shall be fined not more than $50.00. However, this section shall not prevent a person employing workers, for the purpose of giving notice to his or her employees, from ringing bells or using whistles or gongs of such size and weight, in such manner, and at such hours as the selectboard members of the town, the aldermen of the city, or the trustees of the village may prescribe in writing.

History

Source.

V.S. 1947, § 8461. P.L. § 8595. G.L. § 7000. P.S. § 5873. V.S. §§ 4699, 5046. 1890, No. 75 . R.L. § 4234. G.S. 116, § 11. 1863, No. 9 .

§ 1023. Simple assault.

  1. A person is guilty of simple assault if he or she:
    1. attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another; or
    2. negligently causes bodily injury to another with a deadly weapon; or
    3. attempts by physical menace to put another in fear of imminent serious bodily injury.
  2. A person who is convicted of simple assault shall be imprisoned for not more than one year or fined not more than $1,000.00, or both, unless the offense is committed in a fight or scuffle entered into by mutual consent, in which case a person convicted of simple assault shall be imprisoned not more than 60 days or fined not more than $500.00, or both.

HISTORY: Amended 1971, No. 222 (Adj. Sess.), § 2, eff. April 5, 1972; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8459. P.L. § 8593. G.L. § 6998. P.S. § 5871. V.S. § 5044. R.L. § 4229. G.S. 116, § 10. 1854, No. 115 . R.S. 98, § 10. 1821, p. 10. R. 1797, p. 185, § 19.

Amendments

—1981 (Adj. Sess.). Subsec. (b): Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Accessories and principals.

Action of court, during trial of defendant charged as a principal in offense of simple assault by recklessly causing bodily injury, in permitting state to offer evidence that defendant was acting as an accomplice did not improperly deprive defendant of opportunity to adequately or timely prepare a defense to charge that she was acting as an accomplice because charged offense was a misdemeanor, defendant could be informed against, tried and convicted as a principal, irrespective of whether the nature of defendant’s participation in the commission of the offense was as a principal or an accomplice. State v. Sturgeon, 140 Vt. 240, 436 A.2d 777, 1981 Vt. LEXIS 595 (1981).

Construction with other law.

Adoption in 1972 of Model Penal Code provisions relating to assault, including provision that a person is guilty of simple assault if he negligently causes bodily injury to another with a deadly weapon, repealed by implication 1931 law intended to encourage hunters to be careful and providing that one carelessly or negligently wounding another by gunshot shall be imprisoned or fined, for it is evident that both statutes cover the same subject and in such a case the statute which is the more recent will control, as it is the latest expression of the legislative will. State v. Watson, 138 Vt. 276, 413 A.2d 806, 1980 Vt. LEXIS 1131 (1980).

Model Penal Code provision adopted in 1972, providing that a person is guilty of simple assault if he negligently causes bodily injury to another with a deadly weapon, and 1931 law intended to encourage hunters to be careful and providing that one carelessly or negligently wounding another by gunshot shall be imprisoned or fined, cannot logically stand together, for while the former is a misdemeanor and the latter a felony, the latter requires a less culpable state of mind; therefore, the former would be held to repeal the latter by implication. State v. Watson, 138 Vt. 276, 413 A.2d 806, 1980 Vt. LEXIS 1131 (1980).

Defenses.

Intoxication does not negate the element of recklessness in subdivision (a)(1) of this section. State v. Galvin, 147 Vt. 215, 514 A.2d 705, 1986 Vt. LEXIS 401 (1986).

Where defendant, who was convicted of impeding and assaulting a police officer, claimed that he had been pushed into the officer and acted in self-defense when the officer tried to handcuff him after the initial contact, since the assault complaint related back to the initial contact, any subsequent facts were irrelevant, and could not be superimposed to form the basis of a self-defense charge to the jury. State v. Mitchell, 142 Vt. 517, 458 A.2d 1089, 1983 Vt. LEXIS 426 (1983).

In prosecution for assault of a police officer involving provocative conduct by the police, the jury, having been correctly charged on self-defense, was free to decide that the defendant’s actions were not reasonable under the circumstances. State v. Desjardins, 142 Vt. 255, 454 A.2d 1230, 1982 Vt. LEXIS 643 (1982).

Husband who was prevented by restraining order from being at the home of his estranged wife was not protecting himself from forceable removal from his property when police forcibly removed him from wife’s home, he resisted, and blows were struck; and he was properly convicted of unlawful trespass and of recklessly causing bodily injury to a law enforcement officer performing a lawful duty. State v. Foster, 139 Vt. 18, 421 A.2d 1284, 1980 Vt. LEXIS 1384 (1980).

Where defendant, tried for assault upon law enforcement officer who had attempted to serve process on defendant in his home, testified that as he walked down hall in his home someone jumped out at him and shoved something toward his face and he put his hands up to block the object and in doing so struck the officer, there was sufficient evidence to necessitate a charge on self-defense, and it was reversible error to refuse to give one. State v. Bartlett, 136 Vt. 142, 385 A.2d 1109, 1978 Vt. LEXIS 704 (1978).

Elements.

Since simple assault requires an attempt to cause bodily injury or an attempt to put another in fear of imminent serious bodily injury, while attempted sexual assault does not necessarily require such an act or attempt, simple assault is not a lesser included offense of attempted sexual assault. In re Nash, 149 Vt. 63, 539 A.2d 989, 1987 Vt. LEXIS 592 (1987).

Holding of supreme court in State v. Deso , 110 Vt. 1, 1 A.2d 710 (1938), which rejected the notion that present ability to inflict injury upon the person assailed was a prerequisite to a finding of simple assault is still valid even though this section has been amended since that case was decided. State v. Riley, 141 Vt. 29, 442 A.2d 1297, 1982 Vt. LEXIS 469 (1982).

As a prerequisite to a finding of simple assault, while there must be some power to do bodily harm, either actual or apparent, apparent power alone would be sufficient. State v. Riley, 141 Vt. 29, 442 A.2d 1297, 1982 Vt. LEXIS 469 (1982).

Where defendant charged under subdiv. (a)(3) of this section with attempting by physical menace to put another in fear of serious bodily injury possessed in the course of the alleged incident a handgun lacking a firing pin which therefore could not fire, his contention that the police officer assailed could not be put in actual danger as a result failed, since as a prerequisite to a finding of simple assault, while there must be some power to do bodily harm, either actual or apparent, apparent power alone would be sufficient. State v. Riley, 141 Vt. 29, 442 A.2d 1297, 1982 Vt. LEXIS 469 (1982).

Simple assault requires proof of bodily injury or an attempt to cause bodily injury, an element not identical to an element of sexual assault or always necessarily included in the elements of sexual assault; therefore, one charged with sexual assault is not entitled to a jury instruction on simple assault. State v. Bourn, 139 Vt. 14, 421 A.2d 1281, 1980 Vt. LEXIS 1382 (1980).

Regarding this section’s provision that a person is guilty of simple assault if he negligently causes bodily injury to another with a deadly weapon, a state of mind more flagrant than ordinary negligence is required; the risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. State v. Watson, 138 Vt. 276, 413 A.2d 806, 1980 Vt. LEXIS 1131 (1980).

Fear of bodily injury.

The language of subdiv. (a)(3) of this section that sets forth an attempt by physical menace to put another in fear of serious bodily injury was intended to incorporate into the criminal law the civil notion of assault, that an action may be maintained against a person who places another in fear of bodily injury, even if the alleged assailant acts without purpose to carry out the threat. State v. Riley, 141 Vt. 29, 442 A.2d 1297, 1982 Vt. LEXIS 469 (1982).

Rationale for including the civil notion of assault, that an action may be maintained against a person who places another in fear of bodily injury even if the alleged assailant acts without purpose to carry out the threat, within the definition of simple assault set forth in subdiv. (a)(3) of this section, is that a threat of an immediate battery resulting in apprehension, even when intended only as a bluff, is so likely to result in a breach of the peace that it should be a punishable offense. State v. Riley, 141 Vt. 29, 442 A.2d 1297, 1982 Vt. LEXIS 469 (1982).

History.

This section is patterned after the simple assault provision written into the Model Penal Code. State v. Riley, 141 Vt. 29, 442 A.2d 1297, 1982 Vt. LEXIS 469 (1982).

Instructions.

In the case of the defendant charged with attempting by physical menace to put another in fear of serious bodily injury under subdiv. (a)(3) of this section, the court properly instructed the jury that in determining whether or not the defendant intended to place the person assailed, a police officer, in fear they should consider both the bare actions of the defendant and how those actions were perceived by the officer. State v. Riley, 141 Vt. 29, 442 A.2d 1297, 1982 Vt. LEXIS 469 (1982).

On review of a conviction of simple assault against a police officer, the supreme court could not conclude that the trial court’s instructions distinguishing between the enhanced crime of assault of a police officer under section 1028 of this title and simple assault so prejudiced the defendant as to deprive him of a right to a fair trial and mandate reversal, where the jury returned a verdict of not guilty on all counts of assault against one of the two officers and a not guilty verdict on the charge of assault and a guilty verdict only on the charge of simple assault against the other officer. State v. Desjardins, 142 Vt. 255, 454 A.2d 1230, 1982 Vt. LEXIS 643 (1982).

In prosecution for assault of a police officer, the trial court’s instructions, when viewed as a whole, properly instructed the jury on the enhanced crime of assault of a police officer under section 1028 of this title and the crime of simple assault where the court carefully and clearly explained each element of assault of a police officer and correctly distinguished the lesser included offense of simple assault, repeatedly emphasized the need to weigh all the circumstances, both to determine the lawfulness of the police conduct and to determine the reasonableness of the defendant’s response, and instructed that this section has nothing to do with the status of the individual as a police officer and is without regard to whether the individual was acting in the performance of a lawful duty; the instruction that none of the acts of search and seizure were in themselves unlawful did not remove an essential element of the crime from the jury’s consideration where the instructions also clearly were that, if the jury found that “the officer himself committed an assault, or used excessive force in dealing with the defendant prior to striking, then he was not performing a lawful duty and you [the jury] must find defendant not guilty.” State v. Desjardins, 142 Vt. 255, 454 A.2d 1230, 1982 Vt. LEXIS 643 (1982).

Where, in prosecution for simple assault by recklessly causing bodily injury, court instructed jury that it could consider whether defendant was guilty of charged offense or of a lesser included offense, simple assault by mutual consent, and instructed jury that it could convict defendant as an accomplice even if it found defendant had caused no specific bodily injury to victim, jury verdict finding defendant guilty of simple assault by consent required a finding that the defendant had actually entered into a fight or struggle with the victim and that the defendant was liable as a principal, and, therefore, the portion of the court’s instruction on the law of accomplice liability was surplusage and did not vitiate the remainder of the instruction. State v. Sturgeon, 140 Vt. 240, 436 A.2d 777, 1981 Vt. LEXIS 595 (1981).

Intent.

The crime of simple assault by recklessly causing bodily injury to another requires no proof of a specific intent to commit the offense. State v. Sturgeon, 140 Vt. 240, 436 A.2d 777, 1981 Vt. LEXIS 595 (1981).

Lesser included offenses.

Difference between aggravated assault and simple assault lay in the required mental state: intent to prevent in the aggravated assault charge and intent to harm—or doing so knowingly or recklessly—for simple assault. Because the requisite mental element was different for each charge, simple assault was not a lesser included element of aggravated assault as charged, and omitting an instruction on simple assault was not an error. State v. Myers, 2011 VT 43, 190 Vt. 29, 26 A.3d 9, 2011 Vt. LEXIS 43 (2011).

Although simple assault by negligently causing bodily injury to another with a deadly weapon is a lesser included offense of aggravated assault with a deadly weapon, defendant was not entitled to an instruction on simple assault. Defendant drew a knife on an unarmed man at close range and aimed it at several vital areas. State v. Russell, 2011 VT 36, 189 Vt. 632, 22 A.3d 455, 2011 Vt. LEXIS 42 (2011) (mem.).

Because the only difference in the offenses of aggravated assault and simple assault involves whether a deadly weapon was used, where there was no evidence in the case of an assault without a deadly weapon, the trial judge properly held that the jury could not convict defendant of simple assault without convicting him of aggravated assault, and, in these circumstances, the lesser-included offense instruction was inappropriate. State v. Russo, 2004 VT 103, 177 Vt. 394, 864 A.2d 655, 2004 Vt. LEXIS 308 (2004).

Defendant charged with aggravated assault failed in his request that the trial court charge simple assault under the provision of this section that “[a] person is guilty of simple assault if he attempts by physical menace to put another in fear of imminent serious bodily injury” because the aggravated assault statute, 13 V.S.A. § 1024 , does not contain this element; accordingly, the court properly held that defendant was not entitled to a lesser-included offense instruction. State v. Russo, 2004 VT 103, 177 Vt. 394, 864 A.2d 655, 2004 Vt. LEXIS 308 (2004).

Particular cases.

Error in admitting the victim’s testimonial statement to an officer was not harmless because the victim’s statement that she felt pain was the most direct evidence presented by the State on the question of bodily injury, a required element of simple assault by recklessly causing bodily injury. State v. Alers, 2015 VT 74, 199 Vt. 373, 123 A.3d 825, 2015 Vt. LEXIS 54 (2015).

Defendant was not entitled to a judgment of acquittal on a charge of simple assault by recklessly causing bodily injury, as even in the absence of the victim’s inadmissible statements, a reasonable jury could infer that the victim experienced pain when the State presented eyewitness testimony that with his arms around the victim’s neck, defendant dragged her backwards toward a vehicle, that the victim was in a “chokehold,” that defendant jostled her “like a ragged doll,” and that the victim was screaming, “freaked out,” and “beyond herself.” State v. Alers, 2015 VT 74, 199 Vt. 373, 123 A.3d 825, 2015 Vt. LEXIS 54 (2015).

Where defendant and another scuffled, defendant picked up a bottle and the other person picked up a rock and defendant advanced upon the other person, who backed up, at which time law enforcement officers arrived, and defendant never came closer than ten feet to the other person and did not attempt to throw the bottle or lunge toward the other person, conviction of simple assault in that defendant attempted to cause bodily injury to the other person would be reversed. State v. Boutin, 133 Vt. 531, 346 A.2d 531, 1975 Vt. LEXIS 446 (1975).

Prior conduct.

Where, in prosecution for simple assault, court admitted evidence irrelevant to offense charged, relating to previous acts such as complaints to police and prior alleged assaults, there was a clear violation of rule relating to admissibility of testimony of previous conduct and offenses, warranting reversal and new trial. State v. Barcomb, 136 Vt. 141, 385 A.2d 1089, 1978 Vt. LEXIS 703 (1978).

Questions for jury.

Where defendant was charged with attempting by physical menace to put another in fear of serious bodily injury under subdivision (a)(3) of this section, the question of whether or not the defendant’s actions amounted to a simple assault was a question for the jury, to be resolved based upon all the surrounding circumstances, including the words spoken, the appearance and demeanor of the parties, and their conduct in light of the setting and circumstances. State v. Riley, 141 Vt. 29, 442 A.2d 1297, 1982 Vt. LEXIS 469 (1982).

When persons attending an appointed lawful meeting of any description conduct themselves in a manner lawful in itself, but at variance with purpose of gathering and inconsistent with its orderly procedure, it will ordinarily be for jury to say whether their conduct was such as amounted, in circumstances, to a disturbance of peace. State v. Mancini, 91 Vt. 507, 101 A. 581, 1917 Vt. LEXIS 275 (1917).

Cited.

Cited in State v. Peters, 141 Vt. 341, 450 A.2d 332, 1982 Vt. LEXIS 524 (1982); State v. Cyr, 141 Vt. 355, 449 A.2d 926, 1982 Vt. LEXIS 529 (1982); State v. Darling, 141 Vt. 358, 449 A.2d 928, 1982 Vt. LEXIS 532 (1982); State v. Cross, 142 Vt. 44, 451 A.2d 1149, 1982 Vt. LEXIS 580 (1982); State v. Lamb, 142 Vt. 87, 453 A.2d 78, 1982 Vt. LEXIS 611 (1982); In re Berrio, 145 Vt. 6, 481 A.2d 1057, 1984 Vt. LEXIS 531 (1984); State v. Paquette, 146 Vt. 1, 497 A.2d 358, 1985 Vt. LEXIS 419 (1985); State v. Ramsay, 146 Vt. 70, 499 A.2d 15, 1985 Vt. LEXIS 341 (1985); State v. Couture, 146 Vt. 268, 502 A.2d 846, 1985 Vt. LEXIS 382 (1985); State v. Fuller, 146 Vt. 364, 503 A.2d 550, 1985 Vt. LEXIS 435 (1985); State v. Hoadley, 147 Vt. 49, 512 A.2d 879, 1986 Vt. LEXIS 370 (1986); State v. Bushey, 147 Vt. 140, 513 A.2d 1177, 1986 Vt. LEXIS 377 (1986); State v. Peters, 147 Vt. 390, 518 A.2d 28, 1986 Vt. LEXIS 426 (1986); State v. Cox, 147 Vt. 421, 519 A.2d 1144, 1986 Vt. LEXIS 446 (1986); State v. O'Connell, 149 Vt. 114, 540 A.2d 1030, 1987 Vt. LEXIS 602 (1987); State v. Peck, 149 Vt. 617, 547 A.2d 1329, 1988 Vt. LEXIS 88 (1988); State v. Roy, 151 Vt. 17, 557 A.2d 884, 1989 Vt. LEXIS 20 (1989); State v. Francis, 151 Vt. 296, 561 A.2d 392, 1989 Vt. LEXIS 79 (1989); State v. St. Francis, 151 Vt. 384, 563 A.2d 249, 1989 Vt. LEXIS 90 (1989); State v. Perry, 151 Vt. 637, 563 A.2d 1007, 1989 Vt. LEXIS 105 (1989); State v. Weller, 152 Vt. 8, 563 A.2d 1318, 1989 Vt. LEXIS 108 (1989); State v. Edwards, 153 Vt. 649, 569 A.2d 1075, 1989 Vt. LEXIS 238 (1989); State v. Elkins, 155 Vt. 9, 580 A.2d 1200, 1990 Vt. LEXIS 126 (1990); State v. Wood, 157 Vt. 286, 597 A.2d 312, 1991 Vt. LEXIS 180 (1991); State v. Thompson, 158 Vt. 452, 613 A.2d 192, 1992 Vt. LEXIS 80 (1992); State v. Bolio, 159 Vt. 250, 617 A.2d 885, 1992 Vt. LEXIS 134 (1992); State v. Papazoni, 159 Vt. 578, 622 A.2d 501, 1993 Vt. LEXIS 9 (1993); State v. Houle, 162 Vt. 41, 642 A.2d 1178, 1994 Vt. LEXIS 46 (1994); State v. Oren, 162 Vt. 331, 647 A.2d 1009, 1994 Vt. LEXIS 60 (1994); State v. Swift, 2004 VT 8, 2004 VT 8A, 176 Vt. 299, 844 A.2d 802, 2004 Vt. LEXIS 24 (2004) (mem.).

§ 1024. Aggravated assault.

  1. A person is guilty of aggravated assault if the person:
    1. attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life;
    2. attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon;
    3. for a purpose other than lawful medical or therapeutic treatment, the person intentionally causes stupor, unconsciousness, or other physical or mental impairment or injury to another person by administering to the other person without the other person’s consent a drug, substance, or preparation capable of producing the intended harm;
    4. with intent to prevent a law enforcement officer from performing a lawful duty, the person causes physical injury to any person; or
    5. is armed with a deadly weapon and threatens to use the deadly weapon on another person.
  2. A person found guilty of violating a provision of subdivision (a)(1) or (2) of this section shall be imprisoned for not more than 15 years or fined not more than $10,000.00, or both.
  3. A person found guilty of violating a provision of subdivision (a)(3), (4), or (5) of this section shall be imprisoned for not more than five years or fined not more than $5,000.00, or both.
  4. Subdivision (a)(5) of this section shall not apply if the person threatened to use the deadly weapon:
    1. in the just and necessary defense of his or her own life or the life of his or her husband, wife, civil union partner, parent, child, brother, sister, guardian, or person under guardianship;
    2. in the suppression of a person attempting to commit murder, sexual assault, aggravated sexual assault, burglary, or robbery; or
    3. in the case of a civil or military officer lawfully called out to suppress a riot or rebellion, prevent or suppress an invasion, or assist in serving legal process, in suppressing opposition against him or her in the just and necessary discharge of his or her duty.
  5. Subsection (d) of this section shall not be construed to limit or infringe upon defenses granted at common law.

HISTORY: Amended 1971, No. 222 (Adj. Sess.), § 3, eff. April 5, 1972; 2005, No. 83 , § 6; 2013, No. 96 (Adj. Sess.), § 50.

History

Source.

V.S. 1947, § 8463. P.L. § 8597. 1933, No. 157 , § 8240. G.L. § 7002. 1915, No. 91 , § 1. 1908, No. 62 . P.S. § 5875. V.S. § 5049. R.L. § 4230. 1870, No. 60 .

Amendments

—2013 (Adj. Sess.). Subdiv. (d)(1): Substituted “person under guardianship” for “ward”.

—2005. Subsec. (a): Amended subsec. by making language gender inclusive and gender neutral, throughout, and made a minor change in punctuation in subdiv. (1), made a minor stylistic change in subdiv. (4), and added subdiv. (5).

Subsec. (b): Substituted “subdivision (a)(1)” for “subsection (a)(1)” and made a minor change in punctuation.

Subsec. (c): Substituted “subdivisions (a)(3), (4), or (5)” for “subsection (a)(3) or (4)” and made a minor change in punctuation.

Subsecs. (d) and (e): Added.

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Admissibility of evidence.

In aggravated assault prosecution, question to victim’s uncle as to what his concern was upon seeing victim after assault, and answer that “the way she was would make you sick to your stomach,” was admissible as relevant to the seriousness of the injuries, the force necessary to cause them and defendant’s claim of self-defense; and there was no prejudice where answer was a verbal characterization of other evidence consisting of pictures shown jury, taken shortly after the assault, and admitted into evidence. State v. Blakeney, 137 Vt. 495, 408 A.2d 636, 1979 Vt. LEXIS 1067 (1979).

One threatened by harm from another is justified in using reasonable force to repel the aggressor and in determining whether reasonable force was used jury may be allowed to view the injuries or lack thereof sustained by one claiming self-defense as compared to those sustained by the alleged aggressor; and picture of defendant charged with aggravated assault, taken shortly after his arrest and showing noticeable differences in hair, facial hair and clothing between the picture and defendant at trial, was admissible on issue of self-defense claimed by defendant. State v. Blakeney, 137 Vt. 495, 408 A.2d 636, 1979 Vt. LEXIS 1067 (1979).

Deadly weapons.

For a weapon to be considered “deadly” under subdiv. (a)(2) of this section, that weapon need not inflict serious bodily injury. State v. Turner, 2003 VT 73, 175 Vt. 595, 830 A.2d 122, 2003 Vt. LEXIS 148 (2003) (mem.).

If the State fails to introduce the weapon used in an assault, it can meet its burden by introducing testimony about that weapon and the details of the injuries caused, as long as the evidence is sufficient for a reasonable trier of fact to conclude that a deadly weapon was used. State v. Turner, 2003 VT 73, 175 Vt. 595, 830 A.2d 122, 2003 Vt. LEXIS 148 (2003) (mem.).

Numchuks, a martial arts weapon, constitutes a deadly weapon for purposes of this section. State v. Lupien, 143 Vt. 378, 466 A.2d 1172, 1983 Vt. LEXIS 538 (1983).

Defenses.

Defendant’s mens rea is not properly considered along with his possible justification for defending himself. State v. Trombley, 174 Vt. 459, 807 A.2d 400, 2002 Vt. LEXIS 213 (2002) (mem.).

Defense of diminished capacity due to intoxication was not available to assault defendant charged with recklessly causing serious bodily injury to another under circumstances manifesting extreme indifference to value of human life, in violation of subdiv. (a)(1) of this section. State v. Allen, 169 Vt. 615, 738 A.2d 113, 1999 Vt. LEXIS 226 (1999) (mem.).

In prosecution under this section, making it aggravated assault if a person attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon, instruction that voluntary intoxication was not a defense was error, and the error so affected the substantial rights of appellant that it would be noticed on appeal despite lack of proper objection below. State v. D'Amico, 136 Vt. 153, 385 A.2d 1082, 1978 Vt. LEXIS 707 (1978).

Double jeopardy.

Defendant’s convictions for aggravated assault with a deadly weapon and attempted simple assault by physical menace violated the Double Jeopardy Clause of the Fifth Amendment, as the simple assault was a lesser included offense of the aggravated assault charge. State v. Dow, 2016 VT 91, 202 Vt. 616, 152 A.3d 437, 2016 Vt. LEXIS 89 (2016).

As charged, litigated, and instructed, the aggravated assault charge and the reckless endangerment charge each required an element of proof not required for the other charge and thus there was no double jeopardy violation in convicting defendant of both crimes. Although the reckless endangerment charge and the aggravated assault charge both related to defendant’s pointing a gun at the complainants, an essential element of the reckless endangerment charge was that the firearm defendant pointed was operable and capable of causing death or serious bodily injury, while the trial court instructed the jury that the aggravated assault charge required proof that defendant intended to threaten another. State v. Gagne, 2016 VT 68, 202 Vt. 255, 148 A.3d 986, 2016 Vt. LEXIS 64 (2016).

Elements.

One of criminal law’s most basic principles is that a person is not criminally liable for causing a bad result if he or she did not have some culpable mental state with respect to that result; a person’s criminal liability for an act should be proportioned to his or her moral culpability for that act. To remain distinct from the related misdemeanor, felony aggravated assault with a deadly weapon requires greater culpability than reckless conduct. State v. Bourn, 2012 VT 71, 192 Vt. 270, 58 A.3d 236, 2012 Vt. LEXIS 72 (2012).

Conviction for aggravated assault with a deadly weapon requires that the actor subjectively intend to threaten another person with a deadly weapon; accordingly, the accused is entitled to assert appropriate defenses that rebut the State’s arguments on this point. Because the jury charge at defendant’s trial was not consistent with this holding, he was entitled to a new trial on these counts. State v. Bourn, 2012 VT 71, 192 Vt. 270, 58 A.3d 236, 2012 Vt. LEXIS 72 (2012).

Aggravated assault with a deadly weapon is a specific-intent crime. State v. Bourn, 2012 VT 71, 192 Vt. 270, 58 A.3d 236, 2012 Vt. LEXIS 72 (2012).

Trial counsel was ineffective when she failed to obtain expert testimony to refute the most important—and weakest—element in the State’s case: whether petitioner fired his gun at the complaining witness. Because intent to injure was the central element to a charge of aggravated assault, the issue of shot direction was vital to the State’s case; counsel actually bolstered the State’s case by eliciting damaging testimony from a State’s witness, and she hamstrung petitioner’s case by lacking rebuttal evidence to support the contention that directionality could not be determined based on a muzzle flash. In re Russo, 2010 VT 16, 187 Vt. 367, 991 A.2d 1073, 2010 Vt. LEXIS 12 (2010).

Intent to injure is the central element to a charge of aggravated assault under 13 V.S.A. § 1024(a)(2) . In re Russo, 2010 VT 16, 187 Vt. 367, 991 A.2d 1073, 2010 Vt. LEXIS 12 (2010).

Jury is not required to find a probability of death resulting in order for it to conclude that a defendant’s conduct manifested extreme indifference to value of human life, thereby satisfying intent requirement of subsec. (a)(1) of this section. State v. Joseph, 157 Vt. 651, 597 A.2d 805, 1991 Vt. LEXIS 172 (1991) (mem.).

An act can create the requisite “substantial risk of death” without causing permanent physical damage; choking is a good example of such an act. State v. Carpenter, 155 Vt. 59, 580 A.2d 497, 1990 Vt. LEXIS 123 (1990).

In prosecution for aggravated assault in which “substantial risk of death” is sought to be proved, expert medical testimony is not required to prove a victim is in substantial danger of death when medical expert testifies victim was choked to the point of passing out. State v. Carpenter, 155 Vt. 59, 580 A.2d 497, 1990 Vt. LEXIS 123 (1990).

Motion for acquittal at trial for aggravated assault was properly denied, based on testimony that defendant repeatedly forced adopted stepdaughter’s head into bucket of water, that victim was unable to breathe, that defendant choked her and that she lost consciousness and vomited blood. State v. Carpenter, 155 Vt. 59, 580 A.2d 497, 1990 Vt. LEXIS 123 (1990).

At trial for aggravated assault, state bore the burden of proving specific intent, a necessary element of the crime, beyond a reasonable doubt. State v. Kennison, 149 Vt. 643, 546 A.2d 190, 1987 Vt. LEXIS 629 (1987), cert. denied, 486 U.S. 1011, 108 S. Ct. 1743, 100 L. Ed. 2d 206, 1988 U.S. LEXIS 2153 (1988).

Evidence that defendant attempted to discharge pistol justified conclusion that he possessed the specific intent required to cause serious bodily injury. State v. Pratt, 147 Vt. 116, 513 A.2d 606, 1986 Vt. LEXIS 380 (1986).

Trial court erred in denying motion for acquittal of defendant charged with aggravated assault based on an alleged intent to prevent a game warden from performing a lawful duty by causing him physical injury in violation of subdiv. (a)(4) of this section, where the record indicated that the game warden’s lawful authority to remain on the defendant’s premises for purposes of investigating a complaint, in the absence of a search warrant, had terminated, and that the defendant had requested that he leave the premises, and, therefore, the warden was not performing a lawful duty when he received his injury. State v. Martel, 142 Vt. 210, 453 A.2d 1112, 1982 Vt. LEXIS 626 (1982).

Aggravated assault is a specific intent crime and state must show defendant acted with conscious object of causing the serious bodily injury required by this section or that he acted under circumstances where he was practically certain his conduct would cause serious bodily injury. State v. Blakeney, 137 Vt. 495, 408 A.2d 636, 1979 Vt. LEXIS 1067 (1979).

In carrying burden of showing defendant tried for aggravated assault had the requisite specific intent, state is aided by the general rule that the jury may find from all the evidence that a person ordinarily intends the natural and probable consequences of his voluntary acts, knowingly done. State v. Blakeney, 137 Vt. 495, 408 A.2d 636, 1979 Vt. LEXIS 1067 (1979).

In light of testimony that defendant charged with aggravated assault repeatedly struck victim and strangled her for three to four minutes, and that impairing her trachea for that amount of time was life-threatening, and in view of the gross disparity in size between the two, jury could reasonably have concluded defendant had the requisite specific intent. State v. Blakeney, 137 Vt. 495, 408 A.2d 636, 1979 Vt. LEXIS 1067 (1979).

This section, making it aggravated assault if a person “attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon,” makes the mental element of either purpose or knowledge a necessary element of the offense, and the concept of purpose and knowledge corresponds to the common law concept of specific intent, both concepts importing a conscious intent or design to act as charged. State v. D'Amico, 136 Vt. 153, 385 A.2d 1082, 1978 Vt. LEXIS 707 (1978).

It was the legislature’s intent, in enacting this section, making it aggravated assault if a person “attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon,” to proscribe an act which included as an essential mental element that the act be done purposefully or knowingly, and evidence of voluntary intoxication may be introduced to negate such mental element. State v. D'Amico, 136 Vt. 153, 385 A.2d 1082, 1978 Vt. LEXIS 707 (1978).

Inconsistent verdict.

Acquittal of defendant on sexual assault charge did not render his conviction on charge of aggravated assault logically inconsistent, where evidence was sufficient to show defendant submersed victim’s head in a bucket of water and choked her in an attempt to silence her about actions he had good reason to believe constituted a sexual offense. State v. Carpenter, 155 Vt. 59, 580 A.2d 497, 1990 Vt. LEXIS 123 (1990).

Jury instruction.

In its charge on aggravated assault with a deadly weapon, the trial court did not err in declining to instruct the jury that “threaten” meant “to express one’s intent to harm or kill someone.” As the trial court explained, there was a danger that including the definition proffered by defendant would confuse the jury as to the element of intent. State v. Dow, 2016 VT 91, 202 Vt. 616, 152 A.3d 437, 2016 Vt. LEXIS 89 (2016).

As a whole, the instructions on aggravated assault with a deadly weapon and attempted simple assault by physical menace breathed the true spirit and doctrine of the law. The instructions, while referring to defendant’s “secret intent,” also provided detail about the intent elements for both offenses; even though the trial court did not use the words “specific intent,” the instructions adequately explained the required subjective moral culpability by stating that the jury was required to find defendant actually intended to threaten police officers. State v. Dow, 2016 VT 91, 202 Vt. 616, 152 A.3d 437, 2016 Vt. LEXIS 89 (2016).

While in a portion of its spoken instruction concerning the intent element of the aggravated assault charge, the trial court improperly required the State to prove that defendant placed another person in fear of imminent bodily injury, rather than focusing the jury on the effect of defendant’s words or deeds on a reasonable person in similar circumstances, any error was harmless in the context of the overall instruction and given the record in this case. Nothing in the trial court’s instruction suggested that the determination of whether a communication conveyed such an intent was a subjective one that turned on the victim’s perception. State v. Gagne, 2016 VT 68, 202 Vt. 255, 148 A.3d 986, 2016 Vt. LEXIS 64 (2016).

Evidence here did not support an instruction on self-defense or defense-of-others, either as provided by statute for purposes of the aggravated assault charge or under the common law, and the trial court did not commit plain error by failing to sua sponte instruct the jury on these defenses. Defendant did not admit the elements of the charged crimes but claimed innocence, the failure to request the instructions was likely trial strategy, and the record did not support a finding that defendant believed that he and another person were in immediate danger of unlawful bodily harm. State v. Buckley, 2016 VT 59, 202 Vt. 371, 149 A.3d 928, 2016 Vt. LEXIS 62 (2016).

Although the jury instructions on aggravated assault did not include an exact reference to specific “subjective” intent, there was no plain error. They still made clear that there could be no conviction without proof that defendant’s message was to threaten injury to another, and that it was the State’s burden to prove defendant communicated an intent to injure. State v. Cahill, 2013 VT 69, 194 Vt. 335, 80 A.3d 52, 2013 Vt. LEXIS 67 (2013).

In its charge on aggravated assault, the trial court eliminated the State’s burden of proving that defendant specifically intended to drug the two named girls when it instructed the jury that “[t]he State is not required to prove, but may prove, that the defendant intended that a specific person be harmed in this manner.” Because defendant admitted at trial that he deliberately gave “stupefying drugs” to his wife, the instruction virtually assured that the jury would find him guilty of aggravated assault, which was constitutional error requiring a new trial. State v. Kolibas, 2012 VT 37, 191 Vt. 474, 48 A.3d 610, 2012 Vt. LEXIS 34 (2012).

“Injury,” for the purposes of the aggravated assault statute, meant “physical pain, illness or any impairment of physical condition.” When asked if he suffered any physical pain from the kick, the officer in question testified that “[t]here was some discomfort, yes”; while “discomfort” and “pain” were not strictly synonymous, the officer’s testimony was sufficient to support defendant’s conviction on this charge beyond a reasonable doubt. State v. Myers, 2011 VT 43, 190 Vt. 29, 26 A.3d 9, 2011 Vt. LEXIS 43 (2011).

Even if the omission of a diminished capacity instruction based on intoxication was an error, it was not prejudicial. Defendant never raised the issue of his intent with regard to the aggravated assault charges against him. State v. Myers, 2011 VT 43, 190 Vt. 29, 26 A.3d 9, 2011 Vt. LEXIS 43 (2011).

Because defendant was charged with only “purposely” causing serious bodily injury, the trial court’s instruction on the mens rea of “knowingly” was erroneous. State v. Trombley, 174 Vt. 459, 807 A.2d 400, 2002 Vt. LEXIS 213 (2002) (mem.).

The trial court’s inclusion of “knowingly” in jury instructions was harmless error because defendant’s own assertion of self-defense established that he acted with the purpose of inflicting serious bodily injury on the victim. State v. Trombley, 174 Vt. 459, 807 A.2d 400, 2002 Vt. LEXIS 213 (2002) (mem.).

The trial court’s instructions were a correct statement of the law and did not mislead the jury where they started with the charge against defendant of knocking the victim’s teeth out in an altercation and then discussed how the aggressor in a conflict could claim self-defense when met with deadly force; the instructions focused on the relevant time frame and made it clear to the jury that if they found defendant was not acting reasonably during the altercation, as opposed to during his earlier pursuit of the victim, then he was not acting lawfully in self-defense. State v. Trombley, 174 Vt. 459, 807 A.2d 400, 2002 Vt. LEXIS 213 (2002) (mem.).

Defendant was incorrect in claiming that the jury should have been given an instruction that he had to intend the crime of aggravated assault to be convicted under 13 V.S.A. § 1024 ; the statute has three theories of criminal liability for aggravated assault and one of those theories is based on recklessness but does not require intent; the jury instructions mirror the words of the statute and the instructions are valid. State v. LaClair, 161 Vt. 585, 635 A.2d 1202, 1993 Vt. LEXIS 103 (1993) (mem.).

Lesser included offenses.

Difference between aggravated assault and simple assault lay in the required mental state: intent to prevent in the aggravated assault charge and intent to harm—or doing so knowingly or recklessly—for simple assault. Because the requisite mental element was different for each charge, simple assault was not a lesser included element of aggravated assault as charged, and omitting an instruction on simple assault was not an error. State v. Myers, 2011 VT 43, 190 Vt. 29, 26 A.3d 9, 2011 Vt. LEXIS 43 (2011).

Although simple assault by negligently causing bodily injury to another with a deadly weapon is a lesser included offense of aggravated assault with a deadly weapon, defendant was not entitled to an instruction on simple assault. Defendant drew a knife on an unarmed man at close range and aimed it at several vital areas. State v. Russell, 2011 VT 36, 189 Vt. 632, 22 A.3d 455, 2011 Vt. LEXIS 42 (2011) (mem.).

Because the only difference in the offenses of aggravated assault and simple assault involves whether a deadly weapon was used, where there was no evidence in the case of an assault without a deadly weapon, the trial judge properly held that the jury could not convict defendant of simple assault without convicting him of aggravated assault, and, in these circumstances, the lesser-included offense instruction was inappropriate. State v. Russo, 2004 VT 103, 177 Vt. 394, 864 A.2d 655, 2004 Vt. LEXIS 308 (2004).

Defendant charged with aggravated assault failed in his request that the trial court charge simple assault under the provision of 13 V.S.A. §§ 1023(a)(1) that “[a] person is guilty of simple assault if he attempts by physical menace to put another in fear of imminent serious bodily injury” because this section does not contain this element; accordingly, the court properly held that defendant was not entitled to a lesser-included offense instruction. State v. Russo, 2004 VT 103, 177 Vt. 394, 864 A.2d 655, 2004 Vt. LEXIS 308 (2004).

Defendant charged with aggravated assault was not entitled to a lesser-included offense instruction on reckless endangerment because that offense is not composed of elements from the offense of aggravated assault. State v. Russo, 2004 VT 103, 177 Vt. 394, 864 A.2d 655, 2004 Vt. LEXIS 308 (2004).

Motion for judgment of acquittal.

Trial court properly denied defendant’s motion for a judgment of acquittal of aggravated assault with a deadly weapon. The State presented testimony that defendant attacked the victim with a knife. State v. Russell, 2011 VT 36, 189 Vt. 632, 22 A.3d 455, 2011 Vt. LEXIS 42 (2011) (mem.).

Resisting arrest.

Arrest is not an element of aggravated assault; a defendant can be found guilty of aggravated assault under subsec. (a)(4) regardless of whether an arrest was actually accomplished. State v. Turgeon, 165 Vt. 28, 676 A.2d 339, 1996 Vt. LEXIS 35 (1996).

Restitution.

Defendant, who pleaded guilty to aggravated assault, was convicted of a completed crime of which an “attempt” was an element with respect to the extent of the harm, and there was no dispute that defendant’s actions caused physical injury to the victim. Thus, there was no merit to defendant’s argument that his plea to attempting to cause serious bodily injury could not serve as a basis for restitution. State v. Thomas, 2010 VT 107, 189 Vt. 106, 14 A.3d 961, 2010 Vt. LEXIS 108 (2010).

Specific intent.

There was sufficient evidence that defendant had the specific intent required to prove aggravated assault with a deadly weapon and attempted simple assault by physical menace. While some facts could support a finding that defendant harbored an intent to harm himself at certain times during the incident, the circumstantial evidence, particularly the fact that defendant was angrily running down the hall toward the officers carrying a knife, was sufficient for the jury to conclude beyond a reasonable doubt that defendant acted with the specific intent to threaten the officers State v. Dow, 2016 VT 91, 202 Vt. 616, 152 A.3d 437, 2016 Vt. LEXIS 89 (2016).

With regard to an aggravated assault conviction, the evidence that defendant armed himself with a .45 pistol, stood 25 yards away from and pointed his gun at a farmhand, and then fired into the woods for emphasis was sufficient to show that he had the specific intent to threaten. His motive to publicize his cause was not inconsistent with, and did not negate, an intent to threaten the farmhand with the pistol to achieve that end. State v. Cahill, 2013 VT 69, 194 Vt. 335, 80 A.3d 52, 2013 Vt. LEXIS 67 (2013).

Strangulation.

Defendant’s choking of victim constituted serious bodily injury under provision of this section defining aggravated assault as the causing of serious bodily injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to value of human life. State v. Blakeney, 137 Vt. 495, 408 A.2d 636, 1979 Vt. LEXIS 1067 (1979).

Whether evidence in aggravated assault prosecution established that there was a substantial risk of death when victim was choked was a question of fact for the jury, and with the introduction of contradictory evidence it was the exclusive province of the jury as the fact-finder to resolve the conflict and decide whom and what to believe. State v. Blakeney, 137 Vt. 495, 408 A.2d 636, 1979 Vt. LEXIS 1067 (1979).

Jury trying defendant for aggravated assault could have reasonably concluded that choking of victim for three or four minutes placed victim under a substantial risk of death. State v. Blakeney, 137 Vt. 495, 408 A.2d 636, 1979 Vt. LEXIS 1067 (1979).

Sufficiency of evidence.

Evidence that defendant threatened to use a knife on the victim if the video game he sought was not found, stabbed the victim with the knife when the game was not found, and caused a wound requiring stitches was sufficient for a jury to reasonably conclude that the stabbing manner in which the knife was used to inflict injury upon the victim was known by defendant to be capable of producing serious bodily injury. State v. Turner, 2003 VT 73, 175 Vt. 595, 830 A.2d 122, 2003 Vt. LEXIS 148 (2003) (mem.).

Evidence was sufficient to support defendant’s conviction of aggravated assault, where defendant repeatedly expressed his intent to kill anyone who interfered with his control of his infant daughter, he confronted officers with a loaded rifle, and he choked officer to the point that officer could not breathe and his vision began to fade. State v. Petruccelli, 170 Vt. 51, 743 A.2d 1062, 1999 Vt. LEXIS 309 (1999).

Evidence was sufficient for jury to reasonably find that assault victim’s injuries, as well as his increased risk of glaucoma, constituted “serious bodily injury,” and therefore defendant’s motion for judgment of acquittal was properly denied. State v. Allen, 169 Vt. 615, 738 A.2d 113, 1999 Vt. LEXIS 226 (1999) (mem.).

Where evidence at trial for aggravated assault was that defendant, in attempting to flee from arrest, struck officer in head with such force that officer was knocked unconscious for seven or eight minutes, and that defendant then piled heavy wooden pallets on top of officer while she was unconscious, a reasonable jury could have concluded that defendant’s conduct manifested extreme indifference to the value of human life, in accordance with subsec. (a)(1) of this section. State v. Joseph, 157 Vt. 651, 597 A.2d 805, 1991 Vt. LEXIS 172 (1991) (mem.).

Evidence showing that, after heavy drinking, defendant became violent and hit, slapped, and choked his girl friend was sufficient to prove that defendant’s actions constituted an attempt to cause serious bodily injury within meaning of subdiv. (a)(1) of this section; testimony of medical expert was not necessary. State v. Sorrell, 152 Vt. 543, 568 A.2d 376, 1989 Vt. LEXIS 197 (1989).

Cited.

Cited in State v. LaPlante, 141 Vt. 405, 449 A.2d 955, 1982 Vt. LEXIS 552 (1982); State v. Williams, 143 Vt. 396, 467 A.2d 667, 1983 Vt. LEXIS 544 (1983); In re Pernicka, 144 Vt. 319, 478 A.2d 224, 1984 Vt. LEXIS 477 (1984); In re Berrio, 145 Vt. 6, 481 A.2d 1057, 1984 Vt. LEXIS 531 (1984); In re Stevens, 146 Vt. 6, 497 A.2d 744, 1985 Vt. LEXIS 420 (1985); State v. Covell, 146 Vt. 338, 503 A.2d 542, 1985 Vt. LEXIS 439 (1985); In re Pernicka, 147 Vt. 180, 513 A.2d 616, 1986 Vt. LEXIS 382 (1986); State v. Galvin, 147 Vt. 215, 514 A.2d 705, 1986 Vt. LEXIS 401 (1986); State v. Forbes, 147 Vt. 612, 523 A.2d 1232, 1987 Vt. LEXIS 436 (1987); State v. Dennis, 151 Vt. 223, 559 A.2d 670, 1989 Vt. LEXIS 39 (1989); State v. St. Francis, 151 Vt. 384, 563 A.2d 249, 1989 Vt. LEXIS 90 (1989); State v. Perry, 151 Vt. 637, 563 A.2d 1007, 1989 Vt. LEXIS 105 (1989); State v. Gabert, 152 Vt. 83, 564 A.2d 1356, 1989 Vt. LEXIS 132 (1989); State v. Saari, 152 Vt. 510, 568 A.2d 344, 1989 Vt. LEXIS 216 (1989); Corey v. District Court of Vermont, Unit No. 1, 917 F.2d 88, 1990 U.S. App. LEXIS 18545 (2d Cir. 1990); State v. Jenne, 156 Vt. 283, 591 A.2d 85, 1991 Vt. LEXIS 56 (1991); State v. Bolio, 159 Vt. 250, 617 A.2d 885, 1992 Vt. LEXIS 134 (1992); State v. Karov, 170 Vt. 650, 756 A.2d 1236, 2000 Vt. LEXIS 137 (2000); State v. Pitts, 174 Vt. 21, 800 A.2d 481, 2002 Vt. LEXIS 132 (2002); State v. Stevens, 2003 VT 15, 175 Vt. 503, 825 A.2d 8, 2003 Vt. LEXIS 14 (2003) (mem.).

§ 1025. Recklessly endangering another person.

A person who recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury shall be imprisoned for not more than one year or fined not more than $1,000.00 or both. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded, and whether or not the firearm actually was loaded.

HISTORY: Amended 1971, No. 222 (Adj. Sess.), § 4, eff. April 5, 1972; 1999, No. 149 (Adj. Sess.), § 3.

History

Source.

V.S. 1947, § 8416. P.L. § 8551. G.L. § 6967. 1915, No. 208 .

Amendments

—1999 (Adj. Sess.). Added “and whether or not the firearm actually was loaded” at the end of the second sentence.

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Constitutionality.

Unlawful-act manslaughter predicated on reckless endangerment was not unconstitutionally vague when applied to facts of case because recognition of duty to disclose material defects to buyers predated sale of defendant’s home and evidence indicated, and jury found, that defendant’s failure to warn buyers of driveway heater’s dangerous condition amounted to reckless endangerment because defendant knew that the heater was not repaired when he sold the home. State v. Brooks, 163 Vt. 245, 658 A.2d 22, 1995 Vt. LEXIS 11 (1995).

Although supreme court could not specify every set of facts which constitute reckless conduct, the recklessness standard on which involuntary manslaughter is predicated is sufficiently precise to prevent it from being arbitrarily applied; scope of conduct which may be deemed reckless is sufficiently narrowed by the requirement that the risk, when objectively viewed, amounts to a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation. State v. Brooks, 163 Vt. 245, 658 A.2d 22, 1995 Vt. LEXIS 11 (1995).

Arrest without warrant for loitering.

On question of charge of breach of peace by respondent who resisted officer arresting him without warrant, regardless of whether loitering of respondent shown did or did not amount to technical breach of peace, inasmuch as this section was passed as preventive measure and amounts to legislative declaration that loitering on streets endangers peace and tranquility of community, arrest was lawful under rule permitting officer in certain circumstances to interfere to prevent breach of peace. State v. Jasmin, 105 Vt. 531, 168 A. 545, 1933 Vt. LEXIS 247 (1933).

Construction.

One of criminal law’s most basic principles is that a person is not criminally liable for causing a bad result if he or she did not have some culpable mental state with respect to that result; a person’s criminal liability for an act should be proportioned to his or her moral culpability for that act. To remain distinct from the related misdemeanor, felony aggravated assault with a deadly weapon requires greater culpability than reckless conduct. State v. Bourn, 2012 VT 71, 192 Vt. 270, 58 A.3d 236, 2012 Vt. LEXIS 72 (2012).

Amendment to this section adding the phrase “whether or not the firearm actually was loaded” did not do away with the requirement that the State demonstrate that a gun involved in a violation of the statute was operable. State v. Messier, 2005 VT 98, 178 Vt. 412, 885 A.2d 1193, 2005 Vt. LEXIS 237 (2005).

Danger.

In enacting this section, the legislature intended to proscribe conduct which would place the victim in actual danger of death or serious bodily injury, not mere apparent danger. State v. Emilo, 146 Vt. 277, 501 A.2d 1188, 1985 Vt. LEXIS 383 (1985).

In a prosecution under this section, whether the victim was placed in an objective state of danger is an issue of fact. State v. Emilo, 146 Vt. 277, 501 A.2d 1188, 1985 Vt. LEXIS 383 (1985).

In a prosecution under this section, whether a firearm was unloaded or was otherwise inoperative is an essential issue in determining whether the victim was placed in an objective state of danger of death or serious bodily harm. State v. Emilo, 146 Vt. 277, 501 A.2d 1188, 1985 Vt. LEXIS 383 (1985).

In prosecution under this section, there was no error as a matter of law in a finding that police officer was placed in an objective state of danger by being threatened with a loaded but uncocked single action revolver, even though the gun had to be manually cocked before the trigger would operate. State v. Emilo, 146 Vt. 277, 501 A.2d 1188, 1985 Vt. LEXIS 383 (1985).

Evidence.

Where defendant was twice tried for recklessly engaging in conduct placing others in danger of death or serious bodily harm, both trials arose out of same set of circumstances but the alleged conduct differed in each, and he was acquitted of first charge, admittance of references to first charge in second trial, against objections, was improper and prejudicial error, requiring reversal where other prejudicial errors occurred. State v. Kerwin, 133 Vt. 391, 340 A.2d 45, 1975 Vt. LEXIS 413 (1975).

Instructions.

Jury instructions on reckless endangerment were insufficient because they did not inform the jury that reckless endangerment required proof that a firearm was operable. State v. Longley, 2007 VT 101, 182 Vt. 452, 939 A.2d 1028, 2007 Vt. LEXIS 265 (2007).

Where defendant was charged with reckless endangerment for “aiming his car at a Vermont State Police cruiser” and the jury specifically asked whether the State had to prove that defendant aimed his car at a state police cruiser and additionally restated the question: “in other words — is ‘aiming’ a part of the [crime],” the trial court erred in instructing that “[a]iming the car is not an essential element of the charge of reckless endangerment” because a reasonable juror would not have understood from the court’s response that the State had to prove that defendant aimed his car at the cruiser. State v. Brown, 2005 VT 104, 179 Vt. 22, 890 A.2d 79, 2005 Vt. LEXIS 242 (2005).

Although involuntary manslaughter defendant argued that instruction defining recklessness was flawed because it incorporated both the criminal negligence and recklessness standards but did not distinguish between the two, contrary to defendant’s suggestion, both recklessness and criminal negligence require an objective view of risk; the difference is one of degree. State v. Brooks, 163 Vt. 245, 658 A.2d 22, 1995 Vt. LEXIS 11 (1995).

The court properly instructed the jury to objectively assess the risk and to determine whether involuntary manslaughter defendant consciously disregarded that risk; for further clarification, it referred the jury to the reckless endangerment instruction, which expressly required a finding that defendant actually knew from the circumstances then existing that the heater had not properly been repaired. State v. Brooks, 163 Vt. 245, 658 A.2d 22, 1995 Vt. LEXIS 11 (1995).

If there was any flaw in jury instruction in involuntary manslaughter prosecution, it stemmed from the court’s use of the term “reasonable-person” instead of “law-abiding person” when describing the standard for objectively assessing the nature of the risk; this does not amount to plain error. State v. Brooks, 163 Vt. 245, 658 A.2d 22, 1995 Vt. LEXIS 11 (1995).

Where, under provision of this section relating to pointing a gun at or in the direction of another, state alleged defendant pointed a gun at a state trooper and gave evidence that defendant pointed gun in trooper’s direction and judge charged the jury that it need only find the weapon was aimed in the general direction of the trooper, the instruction was not such a material variance between allegation and proof as to be reversible error. State v. Cushman, 133 Vt. 121, 329 A.2d 648, 1974 Vt. LEXIS 299 (1974).

Lesser included offense.

Defendant charged with aggravated assault was not entitled to a lesser-included offense instruction on reckless endangerment because that offense is not composed of elements from the offense of aggravated assault. State v. Russo, 2004 VT 103, 177 Vt. 394, 864 A.2d 655, 2004 Vt. LEXIS 308 (2004).

Reckless endangerment is not a lesser-included offense of common law manslaughter since the unlawful act necessary to sustain a conviction for manslaughter could be reckless or negligent, and, therefore, the offense of reckless endangerment has an element not necessarily included in the offense of manslaughter. State v. Forbes, 147 Vt. 612, 523 A.2d 1232, 1987 Vt. LEXIS 436 (1987).

Particular cases.

Defendant was not entitled to acquittal of reckless endangerment and unlawful mischief, as there was sufficient evidence that he threw a pry bar at a truck when the driver testified that he saw a man in the road holding a large object, which shattered his windshield, there was a divot in the snow where an object apparently bounced off the windshield, police found a pry bar with a broken orange handle inside the home where defendant worked, and the windshield contained orange fragments. State v. Redmond, 2020 VT 36, 212 Vt. 242, 234 A.3d 958, 2020 Vt. LEXIS 39 (2020).

As charged, litigated, and instructed, the aggravated assault charge and the reckless endangerment charge each required an element of proof not required for the other charge and thus there was no double jeopardy violation in convicting defendant of both crimes. Although the reckless endangerment charge and the aggravated assault charge both related to defendant’s pointing a gun at the complainants, an essential element of the reckless endangerment charge was that the firearm defendant pointed was operable and capable of causing death or serious bodily injury, while the trial court instructed the jury that the aggravated assault charge required proof that defendant intended to threaten another. State v. Gagne, 2016 VT 68, 202 Vt. 255, 148 A.3d 986, 2016 Vt. LEXIS 64 (2016).

Information charging defendant with reckless endangerment was sufficient. The language of the information was drawn from the statute and was sufficient on its face to inform defendant of the crime in question; the two accompanying affidavits clearly described defendant’s reckless operation of his truck, including its impact with the complaining witness’s home and the resulting damage, and the fact that the truck struck the room of the complaining witness’s daughter; and defendant made no showing that the perceived lack of clarity in the information prejudiced his defense. State v. Myers, 2011 VT 43, 190 Vt. 29, 26 A.3d 9, 2011 Vt. LEXIS 43 (2011).

Defendant failed in his argument that the district court erred in denying his motion for acquittal from the crime of reckless endangerment based on the insufficiency of evidence of the gun’s operability, where there was testimony and a demonstration regarding the gun’s pump action, shells were found in defendant’s vehicle, the gun itself was entered into evidence and available for the jury’s inspection, defendant adduced no evidence that the gun was not operable, and the gun was not a rusty antique; further, the State was not required to undertake ballistics or other laboratory testing in order to meet its burden on operability. State v. Messier, 2005 VT 98, 178 Vt. 412, 885 A.2d 1193, 2005 Vt. LEXIS 237 (2005).

Where trial court in reckless endangerment proceeding instructed jury that whether rifle allegedly used by defendant was loaded or not was of no importance, instruction was erroneous since legislature, when it enacted this section, intended to proscribe conduct which would place the victim in actual danger of death or serious bodily injury, not mere apparent danger, and consequently, decision in State v. Cushman (1974) 133 Vt. 121, 329 A.2d 648 would be overruled. State v. McLaren, 135 Vt. 291, 376 A.2d 34, 1977 Vt. LEXIS 611 (1977).

Cited.

Cited in State v. Pike, 143 Vt. 283, 465 A.2d 1348, 1983 Vt. LEXIS 515 (1983); In re Stevens, 146 Vt. 6, 497 A.2d 744, 1985 Vt. LEXIS 420 (1985); State v. Pratt, 147 Vt. 116, 513 A.2d 606, 1986 Vt. LEXIS 380 (1986); State v. Brown, 147 Vt. 324, 515 A.2d 1059, 1986 Vt. LEXIS 409 (1986); State v. Weller, 152 Vt. 8, 563 A.2d 1318, 1989 Vt. LEXIS 108 (1989).

§ 1026. Disorderly conduct.

  1. A person is guilty of disorderly conduct if he or she, with intent to cause public inconvenience or annoyance, or recklessly creates a risk thereof:
    1. engages in fighting or in violent, tumultuous, or threatening behavior;
    2. makes unreasonable noise;
    3. in a public place, uses abusive or obscene language;
    4. without lawful authority, disturbs any lawful assembly or meeting of persons; or
    5. obstructs vehicular or pedestrian traffic.
  2. A person who is convicted of disorderly conduct shall be imprisoned for not more than 60 days or fined not more than $500.00, or both. A person who is convicted of a second or subsequent offense under this section shall be imprisoned for not more than 120 days or fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 222 (Adj. Sess.), § 5, eff. April 5, 1972; 2013, No. 150 (Adj. Sess.), § 3.

History

Source.

V.S. 1947, § 8597. P.L. § 8739. 1933, No. 157 , § 8377. G.L. § 7115. P.S. § 5973. V.S. § 5154. 1882, No. 79 , §§ 1, 2.

Amendments

—2013 (Adj. Sess.). Subsec. (a): Amended generally.

Subsec. (b): Added.

—1971 (Adj. Sess.). Section amended generally.

ANNOTATIONS

Constitutionality.

Statutory text of the portion of the disorderly conduct statute pertaining to disturbing any lawful assembly or meeting treats brief outbursts of speech—the content of which may merely be objectionable to the sensibilities of some (or all) of those assembled—the same as prolonged, voluminous speech that, for example, drowns out the primary speaker, preventing audience members from hearing the speaker. If the court were to apply this statute according to its terms, it would criminalize heckling, interrupting, harsh questioning, booing, and all manner of speech that has been tolerated pursuant to the rights accorded to the peoples of free societies; thus, the statute, as worded, impermissibly sanctions a substantial amount of protected speech even when considered in relation to its legitimate scope. State v. Colby, 2009 VT 28, 185 Vt. 464, 972 A.2d 197, 2009 Vt. LEXIS 24 (2009).

Central constitutional tension presented by the disorderly conduct statute pertaining to disturbing any lawful assembly or meeting arises from a clash of two fundamental First Amendment rights—freedom of speech and freedom of assembly. In construing the statute, the court must ensure that neither fundamental right is unnecessarily sacrificed for the sake of the other. State v. Colby, 2009 VT 28, 185 Vt. 464, 972 A.2d 197, 2009 Vt. LEXIS 24 (2009).

To show that a defendant violated the disorderly conduct statute pertaining to disturbing any lawful assembly or meeting, the State must prove that a defendant’s conduct— and not the content of the activity’s expression—substantially impaired the effective conduct of a meeting. Narrowing the reach of the statute in such a fashion strikes the proper balance between the two fundamental rights implicated by the statute, freedom of speech and freedom of assembly. State v. Colby, 2009 VT 28, 185 Vt. 464, 972 A.2d 197, 2009 Vt. LEXIS 24 (2009).

Assuming that a reasonable police officer could have interpreted the disorderly conduct statute to cover plaintiff’s statement at a roadblock, such an officer nonetheless could not have believed that such an interpretation was constitutionally valid. A reasonable officer would have understood that arresting plaintiff merely for uttering an expletive violated plaintiff’s clearly established right to free speech, and in turn, his right not to be arrested without probable cause. Based on such evidence, defendant did not act in good faith and was not entitled to official immunity. Long v. L'Esperance, 166 Vt. 566, 701 A.2d 1048, 1997 Vt. LEXIS 179 (1997).

In light of the action of the Legislature in amending paragraph (3) to conform to the language of the Model Penal Code, and the intent of the Model Code drafters to limit the reach of the “abusive language” provision to “fighting words,” paragraph (3) is properly construed as proscribing only “fighting words.” Prosecution under that provision is thus appropriate only when a defendant’s spoken words, when directed to another person in a public place, with the explicit intent to cause public inconvenience, or annoyance or recklessly create a risk thereof, tend to incite an immediate breach of the peace. State v. Read, 165 Vt. 141, 680 A.2d 944, 1996 Vt. LEXIS 44 (1996).

As applied to defendant who yelled, kicked and attempted to bite a police officer during her arrest, this section is not unconstitutionally vague, since it is sufficiently clear to inform a person of reasonable intelligence that the kind of conduct engaged in by defendant is prohibited. State v. Begins, 147 Vt. 45, 509 A.2d 1007, 1986 Vt. LEXIS 359 (1986).

Provision of this section relating to vehicular or pedestrian traffic is neither unconstitutionally vague nor unconstitutionally over broad. Arbeitman v. District Court of Vermont, 522 F.2d 1031, 1975 U.S. App. LEXIS 12739 (2d Cir. 1975).

Abusive language.

If the “abusive language” provision of the disorderly conduct statute has any continuing force, it is necessarily exceedingly narrow in scope, as the use of foul language and vulgar insults is insufficient, a likelihood of arousing animosity or inflaming anger is insufficient, and the likelihood that the listener will feel an impulse to respond angrily or even forcefully is insufficient. The provision only reaches speech that, in the context in which it is uttered, is so inflammatory that it is akin to dropping a match into a pool of gasoline. State v. Tracy, 2015 VT 111, 200 Vt. 216, 130 A.3d 196, 2015 Vt. LEXIS 94 (2015).

As the reach of the “abusive language” provision of the disorderly conduct statute was constrained by the contours of the category of “fighting words” as defined by First Amendment jurisprudence, defendant’s expression toward his daughter’s basketball coach did not fall within the statute. An average person in the coach’s position would not reasonably be expected to respond to defendant’s harangue with violence when defendant demanded to know why the coach had not allowed the daughter to play, called the coach a “bitch,” and used a vulgar four-letter word. State v. Tracy, 2015 VT 111, 200 Vt. 216, 130 A.3d 196, 2015 Vt. LEXIS 94 (2015).

Reach of the “abusive language” provision of the disorderly conduct statute at this point is so narrow that it is unlikely to apply in any but the most extreme circumstances. State v. Tracy, 2015 VT 111, 200 Vt. 216, 130 A.3d 196, 2015 Vt. LEXIS 94 (2015).

Elements.

The verb “engage” is defined as “to employ or involve oneself; to take part in; to embark on.” Thus, to prove disorderly conduct, the State does not need to prove that the defendant started the fight, but only that he was part of it. State v. Albarelli, 2016 VT 119, 203 Vt. 551, 159 A.3d 627, 2016 Vt. LEXIS 121 (2016).

Fact finder, in determining whether a defendant’s conduct substantially impairs the effective conduct of a meeting, must assess the actual impact of that misconduct on the course of the meeting; naturally, what amounts to a substantial disturbance in one setting may not in another, and the fact finder must take this into account, and may not base its decision on mere assertions of those present that they were “disturbed.” The standard is an objective one: the fact finder may not consider the subjective effect of the content of a defendant’s expressive conduct on those assembled, but must instead evaluate it in terms of timing, duration or intensity. State v. Colby, 2009 VT 28, 185 Vt. 464, 972 A.2d 197, 2009 Vt. LEXIS 24 (2009).

Substantial impairment of the effective conduct of a meeting includes conduct that causes a lawful meeting to terminate prematurely. A defendant’s conduct amounts to a substantial impairment of a meeting where the defendant makes numerous and sustained efforts to disrupt a meeting after being asked to desist. State v. Colby, 2009 VT 28, 185 Vt. 464, 972 A.2d 197, 2009 Vt. LEXIS 24 (2009).

Paragraph (3) (disorderly conduct for “abusive language”) does not except from its reach those incidents in which the victims are police officers, for the following reasons: (1) the fact that police officers are trained to deal calmly and authoritatively with disorderly persons does not guarantee that police officers are immune from reacting instinctively in the face of an abusive tirade; and (2) a police officer is rightly expected to act in accordance with his or her training or disciplinary rules, but to fashion from this expectation a judicial rule that relieves a person from the reach of a criminal statute solely because the victim is a police officer is to invite the use of abusive language toward police officers. State v. Read, 165 Vt. 141, 680 A.2d 944, 1996 Vt. LEXIS 44 (1996).

In the case of defendant convicted of disorderly conduct state did not fail to prove the elements of the offense since the violent outburst which gave rise to the charge constituted tumultuous behavior and the sheriff’s office where the tumultuous behavior occurred was a public place. State v. Lund, 144 Vt. 171, 475 A.2d 1055, 1984 Vt. LEXIS 430 (1984), State v. Begins (1987) 148 Vt. 186, 531 A.2d 595, 1987 Vt. LEXIS 474.

Evidence.

There was insufficient evidence that defendant, who was charged with disorderly conduct, engaged in fighting or in violent, tumultuous, or threatening behavior by walking directly toward an officer and coming within four feet of him, as such behavior did not show fighting, violent, or tumultuous behavior, and defendant’s actions were too ambiguous to indicate a threat. State v. McEachin, 2019 VT 37, 210 Vt. 259, 213 A.3d 1094, 2019 Vt. LEXIS 66 (2019).

Where jury heard testimony that defendant was warned not to obstruct pedestrian traffic, and that he thereafter placed his back against a heavily-used door in order to prevent its use, jury had sufficient grounds for finding the requisite intent to cause public inconvenience or annoyance. State v. Arbeitman, 131 Vt. 596, 313 A.2d 17, 1973 Vt. LEXIS 360 (1973).

Information.

In an information charging defendant with engaging in “violent, threatening language and behavior,” the use of “and” did not disadvantage the defendant, and the surplusage did not amount to plain error. State v. Nichols, 167 Vt. 566, 702 A.2d 77, 1997 Vt. LEXIS 232 (1997) (mem.).

Jury instructions.

In a prosecution of defendant for disorderly conduct, alleging that defendant “with intent to cause public inconvenience and annoyance, obstructed vehicular traffic,” it was error for the trial court to charge the jury to consider whether defendant was “practically certain” that her actions would cause public annoyance or inconvenience. State v. Jackowski, 2006 VT 119, 181 Vt. 73, 915 A.2d 767, 2006 Vt. LEXIS 325 (2006).

In a prosecution of defendant for disorderly conduct, where the trial judge essentially instructed the jury that it could presume defendant intended to cause public annoyance or inconvenience if it found that defendant knew that such annoyance or inconvenience would occur, the instruction may have led the jury to ignore any evidence of defendant’s intent and to convict solely based on her knowledge. Because intent was the only contested issue at trial, the effect of the erroneous instruction was analogous to a directed verdict for the State, and in light of defendant’s right to a jury trial, such an error could not be harmless. State v. Jackowski, 2006 VT 119, 181 Vt. 73, 915 A.2d 767, 2006 Vt. LEXIS 325 (2006).

Obstruction.

Term “obstructs,” as it appears in statute, must be presumed to have ordinary meaning of the word, and, in charge to jury, definition of word as found in both Webster’s Seventh New Collegiate Dictionary and Black’s Law Dictionary was not error. State v. Arbeitman, 131 Vt. 596, 313 A.2d 17, 1973 Vt. LEXIS 360 (1973).

To constitute a violation of this section, the obstruction must be physical, a result of the body or objects, for ideas or words, even if offensive, abusive, or distasteful, are not enough. State v. Arbeitman, 131 Vt. 596, 313 A.2d 17, 1973 Vt. LEXIS 360 (1973).

Particular conduct.

Since defendant’s leaving of Ku Klux Klan flyers at the homes of two women constituted speech and not nonspeech behavior, it did not fall within the disorderly conduct statute. Further, even if the statute could be violated by pure speech, the conduct did not convey an imminent threat of harm, as the flyer was a recruitment solicitation with no explicit statement of threat. State v. Schenk, 2018 VT 45, 207 Vt. 423, 190 A.3d 820, 2018 Vt. LEXIS 48 (2018).

With regard to defendant’s disorderly conduct conviction, testimony that defendant repeatedly punched the complainant’s brother fairly and reasonably supported the conclusion that defendant engaged in fighting behavior. State v. Albarelli, 2016 VT 119, 203 Vt. 551, 159 A.3d 627, 2016 Vt. LEXIS 121 (2016).

In a probation revocation proceeding, there was no support for the State’s position that defendant’s “mouthy and obnoxious” conduct toward his landlord could have given rise to a charge of disorderly conduct. State v. Sanville, 2011 VT 34, 189 Vt. 626, 22 A.3d 450, 2011 Vt. LEXIS 33 (2011).

Defendants’ actions did not substantially impair the effective conduct of a commencement ceremony when a speech was interrupted for less than thirty seconds by defendants’ remarks; one defendant was in the process of leaving the ceremony voluntarily when he was apprehended; and both defendants left the site of the ceremony upon being asked and without further incident. Such de minimis disturbances, even if rude and out of place in the context of a commencement ceremony, could not serve as the basis for criminal liability without running afoul of the First Amendment. State v. Colby, 2009 VT 28, 185 Vt. 464, 972 A.2d 197, 2009 Vt. LEXIS 24 (2009).

Where it was shown that defendant directed extremely vulgar and personally offensive insults at the victim and hurled several items around the room in a fit of anger, and that her behavior alarmed other patrons of the food shelf to the point where they felt compelled to leave, the evidence was sufficient to support a finding that an average person, in these circumstances, could have felt provoked to a violent reaction, and was sufficient to convict her, based on a jury verdict, of disorderly conduct. State v. Allcock, 2004 VT 52, 177 Vt. 467, 857 A.2d 287, 2004 Vt. LEXIS 174 (2004) (mem.).

Defendant’s act of grabbing police officer’s flashlight during a pat-down search on a public roadway could create a risk of public annoyance or inconvenience. State v. Cole, 150 Vt. 453, 554 A.2d 253, 1988 Vt. LEXIS 192 (1988).

Defendant’s act of grabbing a police officer’s flashlight during a pat-down search could be found to be threatening behavior, done to communicate intent to harm. State v. Cole, 150 Vt. 453, 554 A.2d 253, 1988 Vt. LEXIS 192 (1988).

Where trial court found that when defendant was stopped for driving while under the influence of intoxicating liquor, she yelled and screamed, kicked and resisted arrest and had to be restrained with ankle cuffs, handcuffs, and a seatbelt, and attempted to bite one of the police officers, the conduct justified the court’s finding of violent behavior as contemplated by subdiv. (1) of this section. State v. Begins, 147 Vt. 45, 509 A.2d 1007, 1986 Vt. LEXIS 359 (1986).

Where defendant, while passing two people on a sidewalk, struck one of them on the arm, leaving a red mark, defendant’s actions were violent within the meaning of subdiv. (1) of this section. State v. O'Connell, 147 Vt. 60, 510 A.2d 167, 1986 Vt. LEXIS 354 (1986).

There was sufficient competent evidence upon each element of crime of engaging in tumultuous and threatening behavior with intent to cause public inconvenience or annoyance to support conviction where defendant, while standing on steps of store, six feet from constable, after being asked by constable to throw beer can away and clear the steps, a request which had come from the store owners, uttered an ethnic slur and with clenched fists threatened the constable, and followed constable into the store and repeated the slur and challenged the constable to step outside behind the store and settle the matter. State v. Pickett, 137 Vt. 336, 403 A.2d 272, 1979 Vt. LEXIS 968 (1979).

Police officer immunity.

Although 12 V.S.A. § 5602 does protect state employees from suit by providing that under certain circumstances “the exclusive right of action shall lie against the state of Vermont,” the statute explicitly does not apply “to gross negligence or willful misconduct.” Defendant should have known that his arrest of plaintiff for uttering an expletive to defendant at a roadblock was unlawful. A jury could, therefore, have found that his decision to arrest plaintiff amounted to gross negligence or willful misconduct. Long v. L'Esperance, 166 Vt. 566, 701 A.2d 1048, 1997 Vt. LEXIS 179 (1997).

To prevail on his claim of intentional infliction of emotional distress, plaintiff had to demonstrate that defendant police officer’s conduct in arresting plaintiff for disorderly conduct was outrageous, that he acted intentionally or with reckless disregard of the probability of causing emotional distress, and that defendant’s outrageous conduct was the actual or proximate cause of plaintiff’s extreme emotional distress. Accepting plaintiff’s evidence as true, defendant’s arrest of plaintiff for statement made at roadblock was without legal justification. This was sufficient evidence for the case to go to a jury. Long v. L'Esperance, 166 Vt. 566, 701 A.2d 1048, 1997 Vt. LEXIS 179 (1997).

Public inconvenience or annoyance.

In a disorderly conduct case, there was sufficient evidence that defendant recklessly caused the risk of public inconvenience or annoyance when the events of the night took place in a public place, there was a loud, heated exchange of words between defendant and the complainant’s group, at least one member of the public was drawn to the incident, members of both groups tried to separate defendant from the complainant’s brother, and defendant pursued the complainant’s group after both fights were separated. State v. Albarelli, 2016 VT 119, 203 Vt. 551, 159 A.3d 627, 2016 Vt. LEXIS 121 (2016).

Defendant’s conduct in a hospital emergency room supported the trial court’s conclusion that defendant engaged in criminally tumultuous and violent behavior under the disorderly conduct statute. Defendant had to be “moved along” by police into the hospital; she was loud and disruptive; and after being handcuffed to the bed, she banged it into the wall with such force that it had to be separated from the wall to avoid damage. State v. Amsden, 2013 VT 51, 194 Vt. 128, 75 A.3d 612, 2013 Vt. LEXIS 49 (2013).

There was no merit to defendant’s argument that she could not be convicted of disorderly conduct for her behavior in an emergency room because such behavior was an expected, natural occurrence in a hospital environment rather than a public annoyance. Defendant’s decision to add to the existing atmosphere of an emergency room by voluntarily engaging in a loud, obnoxious, and violent course of conduct without reason or medical excuse would itself create a sufficient risk of additional public inconvenience to sustain her conviction under the statute. State v. Amsden, 2013 VT 51, 194 Vt. 128, 75 A.3d 612, 2013 Vt. LEXIS 49 (2013).

In a disorderly conduct case, the State established that defendant recklessly created a risk of public annoyance. On the basis of officers’ testimony that defendant’s behavior inside a hospital was largely a continuation of the disruptive and combative conduct in which she had been engaged since her encounter with police began, and her continuing conduct once inside a so-called safe room, the trial court could reasonably infer that defendant was aware of the substantial and unjustifiable risk of public inconvenience or annoyance created by her behavior and thus consciously disregarded it. State v. Amsden, 2013 VT 51, 194 Vt. 128, 75 A.3d 612, 2013 Vt. LEXIS 49 (2013).

Public place.

Under the disorderly conduct statute, it is not necessary that a defendant voluntarily be present in a public place, but rather that a defendant voluntarily engage in violent, tumultuous, or threatening behavior while in a public place; that is to say, it is the defendant’s behavior and not her condition that is prohibited. Thus, the fact that defendant was taken to a hospital emergency room involuntarily did not mean that she could not be convicted of disorderly conduct for her behavior there. State v. Amsden, 2013 VT 51, 194 Vt. 128, 75 A.3d 612, 2013 Vt. LEXIS 49 (2013).

Where legally sufficient violent, tumultuous, or threatening behavior in an arguably less public place, such as a sheriff’s office or police station, may support a conviction for disorderly conduct, then the same behavior within a hospital must also permit conviction for disorderly conduct. State v. Amsden, 2013 VT 51, 194 Vt. 128, 75 A.3d 612, 2013 Vt. LEXIS 49 (2013).

Where defendant was convicted of disorderly conduct arising out of her actions after she had been stopped by police at an intersection in downtown Burlington, after she was placed in a police cruiser she was still in a public place for purposes of this section. State v. Begins, 147 Vt. 45, 509 A.2d 1007, 1986 Vt. LEXIS 359 (1986).

Threats.

With regard to the disorderly conduct statute, violent or threatening behavior means physical force or physical conduct that is immediately likely to produce the use of such force; speech can be introduced to explain or provide context for physical conduct. State v. Schenk, 2018 VT 45, 207 Vt. 423, 190 A.3d 820, 2018 Vt. LEXIS 48 (2018).

Speech can be relevant to explain whether threatening behavior has occurred under the disorderly conduct statute but only where the behavior is physical conduct and not speech. For example, a person using one hand to punch the other hand is more likely to be engaging in threatening behavior if the physical activity is accompanied by threatening statements than if not. State v. Schenk, 2018 VT 45, 207 Vt. 423, 190 A.3d 820, 2018 Vt. LEXIS 48 (2018).

Where the alleged threatening activity under the disorderly conduct statute includes speech, a subjective standard that judges whether defendant engaged in threatening behavior based on the reaction of particular persons can interfere with First Amendment protections. Thus, the standard must be objective and turn on how a reasonable person would view defendant’s behavior. State v. Albarelli, 2011 VT 24, 189 Vt. 293, 19 A.3d 130, 2011 Vt. LEXIS 22 (2011).

State did not present sufficient evidence to sustain a conviction for disorderly conduct based on threatening. Defendant did not target a specific individual when he approached a voter registration table or issue any overt or implied threats, but simply ranted politically, and his conduct lacked any significant physical component. State v. Albarelli, 2011 VT 24, 189 Vt. 293, 19 A.3d 130, 2011 Vt. LEXIS 22 (2011).

Cited.

Cited in State v. Cyr, 141 Vt. 355, 449 A.2d 926, 1982 Vt. LEXIS 529 (1982); State v. Spear, 142 Vt. 547, 458 A.2d 1098, 1983 Vt. LEXIS 431 (1983); State v. Richards, 144 Vt. 16, 470 A.2d 1187, 1983 Vt. LEXIS 590 (1983); State v. Bargo, 147 Vt. 322, 515 A.2d 1071, 1986 Vt. LEXIS 414 (1986).

§ 1026a. Aggravated disorderly conduct.

  1. A person is guilty of aggravated disorderly conduct if he or she engages in a course of conduct directed at a specific person with the intent to cause the person inconvenience or annoyance, or to disturb the person’s peace, quiet, or right of privacy and:
    1. engages in fighting or in violent, tumultuous, or threatening behavior;
    2. makes unreasonable noise;
    3. in a public place, uses abusive or obscene language; or
    4. threatens bodily injury or serious bodily injury, or threatens to commit a felony crime of violence as defined in section 11a of this title.
  2. A person who is convicted of aggravated disorderly conduct shall be imprisoned not more than 180 days or fined not more than $2,000.00, or both.

HISTORY: Added 2013, No. 150 (Adj. Sess.), § 4.

§ 1027. Disturbing peace by use of telephone or other electronic communications.

  1. A person who, with intent to terrify, intimidate, threaten, harass, or annoy, makes contact by means of a telephonic or other electronic communication with another and makes any request, suggestion, or proposal that is obscene, lewd, lascivious, or indecent; threatens to inflict injury or physical harm to the person or property of any person; or disturbs, or attempts to disturb, by repeated telephone calls or other electronic communications, whether or not conversation ensues, the peace, quiet, or right of privacy of any person at the place where the communication or communications are received shall be fined not more than $250.00 or be imprisoned not more than three months, or both. If the defendant has previously been convicted of a violation of this section or of an offense under the laws of another state or of the United States that would have been an offense under this section if committed in this State, the defendant shall be fined not more than $500.00 or imprisoned for not more than six months, or both.
  2. An intent to terrify, threaten, harass, or annoy may be inferred by the trier of fact from the use of obscene, lewd, lascivious, or indecent language or the making of a threat or statement or repeated telephone calls or other electronic communications as set forth in this section and any trial court may in its discretion include a statement to this effect in its jury charge.
  3. An offense committed by use of a telephone or other electronic communication device as set forth in this section shall be considered to have been committed at either the place where the telephone call or calls originated or at the place where the communication or communications or calls were received.

HISTORY: Added 1967, No. 171 , § 1; amended 1999, No. 124 (Adj. Sess.), § 2; 2013, No. 150 (Adj. Sess.), § 5.

History

Amendments

—2013 (Adj. Sess.). Subsec. (a): Deleted the clause (i)-(iii) designations and “anonymous” following “attempts to disturb, by repeated” and made minor stylistic changes.

Subsec. (b): Deleted “anonymous” following “statement or repeated” and made minor stylistic changes.

—1999 (Adj. Sess.) Added “or other electronic communications” in the section catchline; rewrote subsec. (a), inserted “or other electronic communications” following “telephone calls” in subsec. (b); and inserted “or other electronic communication device” and substituted “communication or communications” for “telephone call” in subsec. (c).

1967, No. 171 , § 2, provided:

“Sec. 2. Severability

The provisions of this act (which added this section) are hereby declared to be severable. If any of its sections, provisions, sentences, clauses, phrases or parts are adjudged by a court of competent jurisdiction to be unconstitutional or void, the remainder of this act shall continue in full force and effect, it being the legislative intent that this act would have been adopted even if the unconstitutional or void matter had not been included therein.”

ANNOTATIONS

Anonymity.

Telephone caller’s anonymity depends in part on the listener’s nonrecognition of the person engaging in the call, since at the instant of recognition the caller’s name or identity, or both, are known. Under any definition, a call cannot be anonymous when its author is known to the listener; it is therefore a necessary condition of anonymity under the statute proscribing disturbing the peace by telephone that the person taking the call does not know the sender. State v. Wyrocki, 2012 VT 7, 191 Vt. 177, 38 A.3d 63, 2012 Vt. LEXIS 4 (2012).

Because the victim knew defendant was the caller, even though the caller’s phone number registered on the victim’s caller ID as “withheld,” defendant’s calls were not anonymous within the meaning of the statute proscribing disturbing the peace by telephone. The invention of caller ID did not turn what was no violation of the statute in 1967 into a crime today. State v. Wyrocki, 2012 VT 7, 191 Vt. 177, 38 A.3d 63, 2012 Vt. LEXIS 4 (2012).

Information.

Since this section, prohibiting a number of acts by use of the telephone, lists the acts in the disjunctive, and defendant was charged strictly in the language of this section so that no specific act was alleged, conviction would be reversed for defendant did not know the nature of the accusation and was unable to prepare a defense, and the evidence and jury charge referred to conduct not stated in the complaint. State v. Hastings, 133 Vt. 118, 330 A.2d 87, 1974 Vt. LEXIS 298 (1974).

Intent.

Both the plain meaning and the legislative history of the telephone harassment statute indicate that the intent element is measured at the time the telephone call is made, rather than at the time the threat was made. State v. Wilcox, 160 Vt. 271, 628 A.2d 924, 1993 Vt. LEXIS 57 (1993).

The intent to make a threatening phone call can be inferred from the actions, conduct or words of the defendant. State v. Wilcox, 160 Vt. 271, 628 A.2d 924, 1993 Vt. LEXIS 57 (1993).

The intent to make a threatening phone call does not require a finding that the call was made solely to harass or threaten another. State v. Wilcox, 160 Vt. 271, 628 A.2d 924, 1993 Vt. LEXIS 57 (1993).

There was insufficient evidence for jury to find intent to make a threatening phone call where defendant had legitimate purpose for making call, tenor of call grew increasingly hostile as it continued, and threatening statement was not made until end of call. State v. Wilcox, 160 Vt. 271, 628 A.2d 924, 1993 Vt. LEXIS 57 (1993).

§ 1028. Assault of protected professional; assault with bodily fluids.

  1. A person convicted of a simple or aggravated assault against a protected professional as defined in subdivision (d)(1) of this section while the protected professional is performing a lawful duty, or with the intent to prevent the protected professional from performing his or her lawful duty, in addition to any other penalties imposed under sections 1023 and 1024 of this title, shall:
    1. for the first offense, be imprisoned not more than one year;
    2. for the second offense and subsequent offenses, be imprisoned not more than 10 years.
    1. No person shall intentionally cause blood, vomitus, excrement, mucus, saliva, semen, or urine to come in contact with a protected professional while the person is performing a lawful duty. (b) (1) No person shall intentionally cause blood, vomitus, excrement, mucus, saliva, semen, or urine to come in contact with a protected professional while the person is performing a lawful duty.
    2. A person who violates this subsection shall be imprisoned not more than one year or fined not more than $1,000.00, or both.
  2. In imposing a sentence under this section, the court shall take into consideration whether the defendant was a patient at the time of the offense and had a psychiatric illness, the symptoms of which were exacerbated by the surrounding circumstances, irrespective of whether the illness constituted an affirmative defense to the charge.
  3. As used in this section:
    1. “Protected professional” shall mean a law enforcement officer; a firefighter; a health care worker; an employee, contractor, or grantee of the Department for Children and Families; or any emergency medical personnel as defined in 24 V.S.A. § 2651(6) .
    2. “Health care facility” shall have the same meaning as defined in 18 V.S.A. § 9432(8) .
    3. “Health care worker” means an employee of a health care facility or a licensed physician who is on the medical staff of a health care facility who provides direct care to patients or who is part of a team-response to a patient or visitor incident involving real or potential violence.
  4. This section shall not apply to an individual under 18 years of age residing in a residential rehabilitation facility.

HISTORY: Added 1973, No. 219 (Adj. Sess.), eff. 30 days from April 3, 1974; amended 1995, No. 146 (Adj. Sess.), § 1; 2007, No. 51 , § 18; 2007, No. 198 (Adj. Sess.), § 1; 2011, No. 26 , § 1, eff. May 12, 2011; 2015, No. 162 (Adj. Sess.), § 6.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

—2011. Catchline: Deleted “emergency room personnel, or” following “firefighter,” and inserted “, or health care worker” preceding “assault”.

Subsec. (a): Inserted “a” preceding “firefighter”; substituted “a health care worker” for “emergency room personnel”, “medical” for “services” following “emergency”, “24 V.S.A. § ” for “subdivision” preceding “2651(6)”; deleted “of Title 24” following “2651(6)”; and inserted “, health care worker” following “firefighter,”.

Subdiv. (b)(1): Substituted “person designated in subsection (a) of this section” for “law enforcement officer” and “person” for “officer”.

Subsecs. (c), (d): Added.

—2007 (Adj. Sess.). In the section catchline, inserted “emergency room personnel” preceding “or emergency medical personnel member” and “; assault with bodily fluids” thereafter, added the subsec. (a) designation, added “emergency room personnel” in the introductory language of subsec. (a), and added subsec. (b).

—2007. Inserted “firefighter, or emergency medical personnel member” in the section catchline, and in the introductory paragraph, substituted a comma for “or” following “enforcement officer” and following “while the officer”, added “or member of emergency services personnel as defined in subdivision 2651(6) of Title 24” preceding “while the officer”, and “or emergency medical personnel member” preceding “is performing”.

—1995 (Adj. Sess.) Deleted the subsec. (a) designation, deleted “for” preceding “not” and “less than thirty days nor” thereafter in subdiv. (1), deleted “for” preceding “not” and “less than two years nor” thereafter in subdiv. (2), and deleted former subsec. (b).

ANNOTATIONS

Defenses.

Intoxication is available as a defense to negate the element of knowledge under this section. State v. Galvin, 147 Vt. 215, 514 A.2d 705, 1986 Vt. LEXIS 401 (1986).

In prosecution for assault of a police officer involving provocative conduct by the police, the jury, having been correctly charged on self-defense, was free to decide that the defendant’s actions were not reasonable under the circumstances. State v. Desjardins, 142 Vt. 255, 454 A.2d 1230, 1982 Vt. LEXIS 643 (1982).

Husband who was prevented by restraining order from being at the home of his estranged wife was not protecting himself from forcible removal from his property when police forcibly removed him from wife’s home, he resisted, and blows were struck; and he was properly convicted of unlawful trespass and of recklessly causing bodily injury to a law enforcement officer performing a lawful duty. State v. Foster, 139 Vt. 18, 421 A.2d 1284, 1980 Vt. LEXIS 1384 (1980).

Where state policeman arrived after defendant and constable who called policeman had verbal dispute, policeman caught up with defendant, who was rapidly walking away from store, policeman asked defendant to accompany him, defendant refused and walked away, officer placed hand on defendant’s shoulder, defendant continued to walk and his shirt ripped and he grabbed, shook and pushed officer, and as the two grappled the constable seized defendant from behind, jury could reject claim of self-defense and find defendant guilty of assaulting a police officer performing his duty. State v. Pickett, 137 Vt. 336, 403 A.2d 272, 1979 Vt. LEXIS 968 (1979).

Where defendant, tried for assault upon law enforcement officer who had attempted to serve process on defendant in his home, testified that as he walked down hall in his home someone jumped out at him and shoved something toward his face and he put his hands up to block the object and in doing so struck the officer, there was sufficient evidence to necessitate a charge on self-defense, and it was reversible error to refuse to give one. State v. Bartlett, 136 Vt. 142, 385 A.2d 1109, 1978 Vt. LEXIS 704 (1978).

Double jeopardy.

Defendant’s convictions for aggravated assault with a deadly weapon and attempted simple assault by physical menace violated the Double Jeopardy Clause of the Fifth Amendment, as the simple assault was a lesser included offense of the aggravated assault charge. State v. Dow, 2016 VT 91, 202 Vt. 616, 152 A.3d 437, 2016 Vt. LEXIS 89 (2016).

Elements of offense.

Evidence that deputy entered curtilage of defendant’s premises in the course of valid investigatory stop supported finding that deputy was assaulted while in performance of his lawful duty. State v. Elkins, 155 Vt. 9, 580 A.2d 1200, 1990 Vt. LEXIS 126 (1990).

For purposes of enhanced penalty applicable to simple assault perpetrated on a police officer engaged in the performance of his lawful duty, lawfulness of the officer’s duty is to be measured against the scope of his employment and not against the ultimate decision regarding the technical legality under the Fourth Amendment or other law; therefore, the lawfulness of the officer’s conduct has relevance to the defenses of provocation and self-defense. State v. Elkins, 155 Vt. 9, 580 A.2d 1200, 1990 Vt. LEXIS 126 (1990).

In trial for simple assault on a police officer, evidence that showed defendant was irritated by deputy’s presence at defendant’s house and use of flashing cruiser lights and deputy’s testimony that irate defendant struck him in the eye raised question for jury as to purposefulness of defendant’s conduct. State v. Elkins, 155 Vt. 9, 580 A.2d 1200, 1990 Vt. LEXIS 126 (1990).

The “lawful duty” standard of this section is intended to prevent police officers from pursuing their own interests or whims under the cloak of official conduct. State v. Collins, 147 Vt. 77, 509 A.2d 1020, 1986 Vt. LEXIS 360 (1986).

Since it was well within the scope of police officer’s employment to peaceably remove defendant from a place where his behavior had been objectionable and agree to give him a ride home, assault which took place during the ride occurred while the officer was “performing a lawful duty” within the meaning of this section. State v. Collins, 147 Vt. 77, 509 A.2d 1020, 1986 Vt. LEXIS 360 (1986).

Defendant was properly found guilty of assaulting a police officer performing a lawful duty, even though the officer had taped defendant’s conversation with his attorney, allegedly in violation of federal law, since the officer was not taping at the time of the assault, but was lawfully assisting other police officers. State v. Fuller, 146 Vt. 364, 503 A.2d 550, 1985 Vt. LEXIS 435 (1985).

Where the victim of defendant’s assault was a deputy sheriff whose certificate of appointment to that office stated that he had attended a 36-hour course in police instruction, defendant could be found guilty under this section, rendering the offense of simple assault a more serious crime carrying greater penalties when committed upon a law enforcement officer performing a lawful duty, since, even though the officer’s certificate did not state that he had completed the training course as required by section 311 of Title 24, governing appointment of deputy sheriffs, he was a de facto officer and, therefore, was a law enforcement officer within the meaning of this section, and a party to the action. State v. Mitchell, 142 Vt. 517, 458 A.2d 1089, 1983 Vt. LEXIS 426 (1983).

Where defendant was charged with aggravated assault on a police officer with a deadly weapon, the state had the burden of proving beyond a reasonable doubt that defendant either attempted to cause, or purposely or knowingly caused, bodily injury, through the use of a deadly weapon, to a law enforcement officer engaged in the performance of a lawful duty. State v. Lupien, 143 Vt. 378, 466 A.2d 1172, 1983 Vt. LEXIS 538 (1983).

In the case of defendant convicted of breaking and entering in the nighttime with intent to commit larceny, where the uncontradicted facts established at trial proved that defendant assisted in the break-in, entered the building with two others and was in the process of pointing out to them where the food they intended to steal was when the police arrived, it was not error for the trial court to deny defendant’s motion for judgment of acquittal, notwithstanding the fact that the court stated in its findings of fact that defendant was a “tagalong,” since the findings made clear that defendant knowingly and intentionally participated in the crime. State v. Wood, 143 Vt. 408, 465 A.2d 1372, 1983 Vt. LEXIS 526 (1983).

This section requires that the simple assault of an officer occur while the officer is performing a lawful duty. State v. Desjardins, 142 Vt. 255, 454 A.2d 1230, 1982 Vt. LEXIS 643 (1982).

Under this section, the lawfulness of the officer’s duty is to be measured against the scope of his employment and not against the ultimate decision regarding the technical legality of the activities in question. State v. Desjardins, 142 Vt. 255, 454 A.2d 1230, 1982 Vt. LEXIS 643 (1982).

Instructions.

As a whole, the instructions on aggravated assault with a deadly weapon and attempted simple assault by physical menace breathed the true spirit and doctrine of the law. The instructions, while referring to defendant’s “secret intent,” also provided detail about the intent elements for both offenses; even though the trial court did not use the words “specific intent,” the instructions adequately explained the required subjective moral culpability by stating that the jury was required to find defendant actually intended to threaten police officers. State v. Dow, 2016 VT 91, 202 Vt. 616, 152 A.3d 437, 2016 Vt. LEXIS 89 (2016).

Where jury charge tracked statutory elements of simple assault and simple assault against police officer and added “private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties,” defendant did not object to charge, self-defense charge raised issue of knowledge that victim was police officer and evidence was strong that defendant knew that victim was police officer, omission of element of knowledge from charge did not warrant reversal. State v. Roy, 151 Vt. 17, 557 A.2d 884, 1989 Vt. LEXIS 20 (1989).

In the case of defendant charged with simple assault on a police officer, trial court’s failure to adequately define the element of lawful duty in its jury instructions was not prejudicial to the defendant where the officer had identified himself, his official capacity was admittedly known to the defendant, and the officer had informed the defendant that he was being arrested pursuant to a bench warrant; therefore, as a matter of law the police officer was acting within the scope of his lawful duty. State v. Peters, 141 Vt. 341, 450 A.2d 332, 1982 Vt. LEXIS 524 (1982).

On review of a conviction of simple assault against a police officer, the supreme court could not conclude that the trial court’s instructions distinguishing between the enhanced crime of assault of a police officer and simple assault under section 1023 of this title so prejudiced the defendant as to deprive him of a right to a fair trial and mandate reversal, where the jury returned a verdict of not guilty on all counts of assault against one of the two officers and a not guilty verdict on the charge of assault and a guilty verdict only on the charge of simple assault against the other officer. State v. Desjardins, 142 Vt. 255, 454 A.2d 1230, 1982 Vt. LEXIS 643 (1982).

In prosecution for assault of a police officer, the trial court’s instructions, when viewed as a whole, properly instructed the jury on the enhanced crime of assault of a police officer and the crime of simple assault where the court carefully and clearly explained each element of assault of a police officer and correctly distinguished the lesser included offense of simple assault, repeatedly emphasized the need to weigh all the circumstances, both to determine the lawfulness of the police conduct and to determine the reasonableness of the defendant’s response, and instructed that section 1023 of this title, governing simple assault, has nothing to do with the status of the individual as a police officer and is without regard to whether the individual was acting in the performance of a lawful duty; the instruction that none of the acts of search and seizure were in themselves unlawful did not remove an essential element of the crime from the jury’s consideration where the instructions also clearly were that, if the jury found that “the officer himself committed an assault, or used excessive force in dealing with the defendant prior to striking, then he was not performing a lawful duty and you [the jury] must find the defendant not guilty.” State v. Desjardins, 142 Vt. 255, 454 A.2d 1230, 1982 Vt. LEXIS 643 (1982).

In prosecution for assault of a police officer involving provocative conduct by the police, reversal of conviction on the basis of the instructions to the jury was not warranted where the trial judge’s characterization of the police as being engaged in acts “not in themselves unlawful” was clearly tied to an explanation of this section and the meaning of lawful duty, and there was no indication that the jury failed to appreciate the distinction between the need to find that the officers were performing their lawful duty before enhanced penalties became operative and the finding that an unlawful search could aggravate a confrontation and lend credence to a claim of self-defense. State v. Desjardins, 142 Vt. 255, 454 A.2d 1230, 1982 Vt. LEXIS 643 (1982).

Purpose.

By enacting this section, legislature intended to provide increased penalties against anyone who assaults a law enforcement officer in the performance of an official duty, knowing or having good reason to believe that the person is in fact such an officer. State v. Peters, 141 Vt. 341, 450 A.2d 332, 1982 Vt. LEXIS 524 (1982).

Sentence.

Mandatory minimum sentence under this section does not violate separation of powers doctrine by limiting discretion of sentencing court. State v. Saari, 152 Vt. 510, 568 A.2d 344, 1989 Vt. LEXIS 216 (1989). (Decided under prior law.)

Mandatory minimum sentence under this section does not violate defendants’ rights to allocation. State v. Saari, 152 Vt. 510, 568 A.2d 344, 1989 Vt. LEXIS 216 (1989). (Decided under prior law) .

Specific Intent.

There was sufficient evidence that defendant had the specific intent required to prove aggravated assault with a deadly weapon and attempted simple assault by physical menace. While some facts could support a finding that defendant harbored an intent to harm himself at certain times during the incident, the circumstantial evidence, particularly the fact that defendant was angrily running down the hall toward the officers carrying a knife, was sufficient for the jury to conclude beyond a reasonable doubt that defendant acted with the specific intent to threaten the officers. State v. Dow, 2016 VT 91, 202 Vt. 616, 152 A.3d 437, 2016 Vt. LEXIS 89 (2016).

Cited.

Cited in State v. Allen, 139 Vt. 303, 427 A.2d 373, 1981 Vt. LEXIS 449 (1981); State v. Lamb, 142 Vt. 87, 453 A.2d 78, 1982 Vt. LEXIS 611 (1982); State v. Hoadley, 147 Vt. 49, 512 A.2d 879, 1986 Vt. LEXIS 370 (1986); State v. Larose, 150 Vt. 363, 554 A.2d 227, 1988 Vt. LEXIS 184 (1988); State v. Dennis, 151 Vt. 223, 559 A.2d 670, 1989 Vt. LEXIS 39 (1989); State v. St. Francis, 151 Vt. 384, 563 A.2d 249, 1989 Vt. LEXIS 90 (1989); State v. Oren, 162 Vt. 331, 647 A.2d 1009, 1994 Vt. LEXIS 60 (1994).

§ 1028a. Assault of correctional officer; assault with bodily fluids.

  1. A person convicted of a simple or aggravated assault against an employee of the Department of Corrections whose official duties or job classification includes the supervision or monitoring of a person on parole, probation, or serving any sentence of incarceration whether inside or outside a correctional facility, and who was performing a lawful duty, in addition to any other penalties imposed under sections 1023 and 1024 of this title, shall:
    1. for the first offense, be imprisoned not more than one year; and
    2. for the second offense and subsequent offenses, be imprisoned not more than 10 years.
  2. No person shall intentionally cause blood, vomitus, excrement, mucus, saliva, semen, or urine to come in contact with:
    1. any person lawfully present in a correctional facility unless the person’s presence within the facility requires the contact; or
    2. an employee of a correctional facility acting in the scope of employment unless the employee’s scope of employment requires the contact.
  3. A person who violates subsection (b) of this section shall be imprisoned not more than two years or fined not more than $1,000.00, or both.
  4. A sentence imposed for a conviction of this section shall be served consecutively with and not concurrently with any other sentence.

HISTORY: Added 1997, No. 152 (Adj. Sess.), § 2; amended 2005, No. 63 , § 25.

History

Amendments

—2005. Added “assault with bodily fluids” in the section catchline; added new subsecs. (b) and (c) and redesignated former subsec. (b) as subsec. (d).

§ 1029. Alcoholism, limitations, exceptions.

  1. No political subdivision of the State may adopt or enforce a law or rule having the force of law that includes being found in an intoxicated condition as one of the elements of the offense giving rise to a criminal or civil penalty.  No political subdivision may interpret or apply any law of general application to circumvent this provision.
  2. Nothing in this section affects any law or rule against operating a motor vehicle or other machinery under the influence of alcohol or possession or use of alcoholic beverages at stated times and places or by a particular class of persons.
  3. This section does not make intoxication or incapacitation as defined in 18 V.S.A. § 4802 an excuse or defense for any criminal act. Nothing contained herein shall change current law relative to insanity as a defense for any criminal act.
  4. This section does not relieve any person from civil liability for any injury to persons or property caused by that person while intoxicated or incapacitated.

HISTORY: Added 1977, No. 208 (Adj. Sess.), § 12; amended 2019, No. 167 (Adj. Sess.), § 12, eff. Oct. 7, 2020.

History

Editor’s note—

18 V.S.A. § 9142 , referred to in subsec. (c), was recodified as 33 V.S.A. § 702 , pursuant to 1989, No. 148 (Adj. Sess.), § 2(a).

Amendments

—2019 (Adj. Sess.). Subsec. (c): Substituted “ 18 V.S.A. § 4802 ” for “ 18 V.S.A. § 9142 .”

§ 1030. Violation of an abuse prevention order, an order against stalking or sexual assault, or a protective order concerning contact with a child.

  1. A person who intentionally commits an act prohibited by a court or who fails to perform an act ordered by a court, in violation of an abuse prevention order issued under 15 V.S.A. chapter 21 or 33 V.S.A. chapter 69, a protective order that concerns contact with a child and is issued under 33 V.S.A. chapter 51, or an order against stalking or sexual assault issued under 12 V.S.A. chapter 178, after the person has been served notice of the contents of the order as provided in those chapters; or in violation of a foreign abuse prevention order or an order against stalking or sexual assault issued by a court in any other state, federally recognized Indian tribe, territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia shall be imprisoned not more than one year or fined not more than $5,000.00, or both.
  2. A person who is convicted of a second or subsequent offense under this section or is convicted of an offense under this section and has previously been convicted of domestic assault under section 1042 of this title, first degree aggravated domestic assault under section 1043 of this title, or second degree aggravated domestic assault under section 1044 of this title shall be imprisoned not more than three years or fined not more than $25,000.00, or both.
  3. Upon conviction under this section for a violation of an order issued under 15 V.S.A. chapter 21, the court shall, unless the circumstances indicate that it is not appropriate or not available, order the defendant to participate in domestic abuse counseling or a domestic abuse prevention program approved by the Department of Corrections. The defendant may at any time request the court to approve an alternative program. The defendant shall pay all or part of the costs of the counseling or program unless the court finds that the defendant is unable to do so.
  4. Upon conviction for a violation of an order issued under 12 V.S.A. chapter 178, the court may order the defendant to participate in mental health counseling or sex offender treatment approved by the Department of Corrections. The defendant shall pay all or part of the costs of the counseling unless the court finds that the defendant is unable to do so.
  5. Nothing in this section shall be construed to diminish the inherent authority of the courts to enforce their lawful orders through contempt proceedings.
  6. Prosecution for violation of an abuse prevention order or an order against stalking or sexual assault shall not bar prosecution for any other crime, including any crime that may have been committed at the time of the violation of the order.

HISTORY: Added 1989, No. 294 (Adj. Sess.), § 1; amended 1991, No. 180 (Adj. Sess.), § 4; 1995, No. 170 (Adj. Sess.), § 30, eff. May 15, 1996; 2005, No. 193 (Adj. Sess.), § 2, eff. Oct. 1, 2006; 2007, No. 174 (Adj. Sess.), § 4; 2007, No. 185 (Adj. Sess.), § 5; 2017, No. 44 , § 3.

History

Amendments

—2017. Subsec. (a): Amended generally.

Subsec. (c): Substituted “15 V.S.A. chapter 21” for “chapter 21 of Title 15” and inserted “prevention” preceding “program” in the first sentence.

Subsec. (d): Substituted “12 V.S.A. chapter 178” for “chapter 178 of Title 12”.

—2007 (Adj. Sess.). Subsec. (a): Act 174 inserted “or an order against stalking or sexual assault” following “foreign abuse prevention order”.

Subsec. (b): Inserted “or is convicted of an offense under this section and has previously been convicted of domestic assault under section 1042 of this title, first degree aggravated domestic assault under section 1043 of this title, or second degree aggravated domestic assault under section 1044 of this title”.

Act 185, in the section heading, inserted “an” preceding “abuse”, deleted “or” following “order”, and added “or a protective order concerning contact with a child” following “assault”; and inserted “a protective order that concerns contact with a child and is issued under chapter 51 of Title 33” in subsec. (a).

—2005 (Adj. Sess.). In the catchline added “or an order against stalking or sexual assault” and in the text inserted “or an order against stalking or sexual assault issued under chapter 178 of Title 12” following “Title 33” in subsec. (a); added new subsec. (d) and redesignated former subsecs. (d) and (e) as present subsecs. (e) and (f); and in present subsec. (f), inserted “or an order against stalking or sexual assault” following “order” and deleted “abuse prevention” following “violation of the”.

—1995 (Adj. Sess.) Subsec. (a): Substituted “those chapters; or a foreign abuse prevention order issued by a court in any other state, federally recognized Indian tribe, territory or possession of the United States, the Commonwealth of Puerto Rico or the District of Columbia” for “that chapter” preceding “shall be imprisoned” and made minor changes in style.

—1991 (Adj. Sess.). Subsec. (a): Inserted “or chapter 69 of Title 33” following “Title 15”.

Subsec. (c): Inserted “for a violation of an order issued under chapter 21 of Title 15” following “section” in the first sentence.

Applicability of 2007 (Adj. Sess.) amendment. 2007, No. 185 (Adj. Sess.), § 14 provides: “This act [which amended this section] shall take effect January 1, 2009 and shall apply to any petition filed after the effective date or any permanency review hearing held after the effective date.”

ANNOTATIONS

Double jeopardy.

Convictions of defendant for attempted felony violation of a relief from abuse order by following or stalking the victim, and contempt for violating his condition of release by coming within 100 feet of the victim or her vehicle, did not violate double jeopardy. State v. Prior, 2007 VT 1, 181 Vt. 564, 917 A.2d 466, 2007 Vt. LEXIS 1 (2007) (mem.).

Due process.

Service of order on defendant was sufficient to meet requirements of due process, even though he was unable to read terms of order, since service should have put defendant on notice that he needed to know terms of order and comply with them. State v. Crown, 169 Vt. 547, 726 A.2d 493, 1999 Vt. LEXIS 14 (1999) (mem.).

Evidence.

Evidence that the vehicle in which defendant was a passenger remained in proximity to his ex-girlfriend’s vehicle for several miles, and that defendant threw a beer bottle out the window toward her was sufficient for a reasonable jury to conclude that his conduct constituted following. State v. Malshuk, 2004 VT 54, 177 Vt. 475, 857 A.2d 282, 2004 Vt. LEXIS 168 (2004) (mem.).

Instructions.

In the absence of any elaboration, the appropriate definition of “harassment” in a relief-from-abuse order is that used in the stalking statute, which contains an element of threat. Thus, an instruction that allowed a conviction for violating a relief-from-abuse order on the basis of objectively annoying conduct was clearly error; moreover, defendant was significantly prejudiced by the instruction, as the State’s case, and the conviction, rested squarely on the overly broad definition of harassment used in the instruction. State v. Waters, 2013 VT 109, 195 Vt. 233, 87 A.3d 512, 2013 Vt. LEXIS 108 (2013).

In prosecution of defendant for violating an abuse prevention order, an instruction that the jury could find that he had violated the order if it found that he had “followed or stalked” the victim was not plain error since the instruction defined the terms “following” and “stalk” in much the same way as those terms are defined in the stalking statute and the evidence relating to alternative theories under which a jury could convict was intertwined throughout the trial. State v. Prior, 2007 VT 1, 181 Vt. 564, 917 A.2d 466, 2007 Vt. LEXIS 1 (2007) (mem.).

In prosecution of defendant for violating an abuse prevention order, an instruction that the jury could find that he had violated the order if it found that he had “followed or stalked” the victim was not plain error since the instruction defined the terms “following” and “stalk” in much the same way as those terms are defined in the stalking statute and the evidence relating to alternative theories under which a jury could convict was intertwined throughout the trial. State v. Prior, 2007 VT 1, 181 Vt. 564, 917 A.2d 466, 2007 Vt. LEXIS 1 (2007) (mem.).

In a prosecution of defendant for violating an abuse prevention order that prohibited him from stalking, following, or coming within 100 feet of his ex-girlfriend, the trial court did not err in instructing the jury that the legal definition of “following” included placing oneself in physical proximity of another. State v. Malshuk, 2004 VT 54, 177 Vt. 475, 857 A.2d 282, 2004 Vt. LEXIS 168 (2004) (mem.).

Mens rea.

Despite defendant’s illiteracy, statutory language required State to prove only that defendant violated abuse prevention order after it was properly served upon him, and State was not required to prove that defendant knew that his conduct would violate order or that he fully understood requirements of order. State v. Crown, 169 Vt. 547, 726 A.2d 493, 1999 Vt. LEXIS 14 (1999) (mem.).

The court correctly charged on the mens rea element of the crime of violation of an abuse prevention order. Defendant had the responsibility to read and understand the order and to conform his conduct to it. State v. Mott, 166 Vt. 188, 692 A.2d 360, 1997 Vt. LEXIS 6 (1997).

Predicate conviction.

Jury had to find the predicate conviction beyond a reasonable doubt in order for the court to impose the greater sentence authorized by subsec. (b) of this section. State v. Dunbar, 172 Vt. 557, 772 A.2d 533, 2001 Vt. LEXIS 139 (2001) (mem.).

Where defendant pled not guilty to the state’s information charging a violation of this section, and was not asked to plead specially on the enhancement question, his silence on that issue must be taken as a denial, not a waiver. State v. Dunbar, 172 Vt. 557, 772 A.2d 533, 2001 Vt. LEXIS 139 (2001) (mem.).

Where the state failed to prove defendant’s predicate conviction before the jury was discharged, recall of the jury to make such determination was error, and he could be convicted only of the first offense misdemeanor specified in subsec. (a) of this section. State v. Dunbar, 172 Vt. 557, 772 A.2d 533, 2001 Vt. LEXIS 139 (2001) (mem.).

Sentence.

There was no error in sentencing defendant, who was convicted of violating an abuse-prevention order and of five misdemeanors, to five to fourteen years under the Habitual Offender Act. Defendant’s sentence was neither contrary to his plea agreement, nor inconsistent with the minimum authorized by statutes other than the Act, nor beyond the enhanced maximum allowed by the Act. State v. Carpenter, 2013 VT 28, 193 Vt. 484, 70 A.3d 1023, 2013 Vt. LEXIS 26 (2013).

Validity of order.

Defendant should have been acquitted of violating an abuse-prevention order issued in New Hampshire because in the absence of evidence that the final order had been served on defendant by proof of mailing it to his last known address in accordance with New Hampshire law, which had not adopted actual notice as a substitute for service of process in abuse cases, the State had not established that the final order was enforceable in Vermont pursuant to the statute governing enforceability of foreign orders. State v. O'Keefe, 2019 VT 14, 209 Vt. 497, 208 A.3d 249, 2019 Vt. LEXIS 34 (2019).

This section does not make the validity of an abuse prevention order an element of the offense of violating it; the validity of the order is a legal issue for resolution by the trial court and not by the jury. State v. Mott, 166 Vt. 188, 692 A.2d 360, 1997 Vt. LEXIS 6 (1997).

§ 1031. Interference with access to emergency services.

A person who, during or after the commission of a crime, willfully prevents or attempts to prevent a person from seeking or receiving emergency medical assistance, emergency assistance from a third party, or emergency assistance from law enforcement shall be imprisoned not more than one year or fined not more than $5,000.00, or both.

HISTORY: Added 2007, No. 174 (Adj. Sess.), § 7.

§ 1032. Law enforcement use of chokeholds.

  1. As used in this section:
    1. “Law enforcement officer” has the same meaning as in 20 V.S.A. § 2351a .
    2. “Chokehold” means the use of any maneuver on a person that employs a lateral vascular neck restraint, carotid restraint, or other action that applies any pressure to the throat, windpipe, or neck in a manner that limits the person’s breathing or blood flow.
    3. “Serious bodily injury” has the same meaning as in section 1021 of this title.
  2. A law enforcement officer acting in the officer’s capacity as law enforcement who employs a chokehold on a person in violation of 20 V.S.A. § 2368(c)(6) that causes serious bodily injury to or death of the person shall be imprisoned for not more than 20 years or fined not more than $50,000.00, or both.

HISTORY: Added 2019, No. 147 (Adj. Sess.), § 6, eff. Oct. 1, 2020; amended 2021, No. 27 , § 2, eff. Oct. 1, 2021.

History

Amendments

—2021. Section heading: Substituted “chokeholds” for “prohibited restraint”.

Subsec. (a): Amended generally.

Subsec. (b): Substituted “chokehold” for “prohibited restraint” and inserted “in violation of 20 V.S.A. § 2368(c)(6) ”.

Repeal of prospective repeal. 2019, No. 147 (Adj. Sess.), § 9(a), which had provided for the repeal of this section effective July 1, 2021, was repealed by 2019, No. 165 (Adj. Sess.), § 3(a), eff. Oct. 7, 2020.

Subchapter 5. Jurisdiction of Justices

§ 1051. Repealed. 1971, No. 222 (Adj. Sess.), § 7, eff. April 5, 1972.

History

Former § 1051. Former § 1051 related to breach of the peace at religious meetings and was derived from 1971, No. 199 (Adj. Sess.), § 15; V.S. 1947, § 8462; P.L. § 8596; G.L. § 7001; P.S. § 5874; 1906, No. 188 , § 1; V.S. § 5048; R.L. § 4235; 1863, No. 9 .

§ 1052. Repealed. 1959, No. 262, § 37, eff. June 11, 1959.

History

Former § 1052. Former § 1052 related to disturbance of camp meetings and was derived from V.S. 1947, § 8576; P.L. § 8710; G.L. § 7101; 1910, No. 91 , § 9; P.S. § 5959; V.S. § 5144; R.L. § 4318; 1863, No. 9 ; G.S. 93, §§ 8, 9; R.S. 82, §§ 9, 10; 1827, No. 25 , § 2; 1819, p. 21.

Subchapter 6. Domestic Assaults

§ 1041. Definition.

As used in this subchapter, “family or household members” means persons who are eligible for relief from abuse under 15 V.S.A. chapter 21.

HISTORY: Added 1993, No. 95 , § 2.

ANNOTATIONS

Other crimes, wrongs, or acts.

In an aggravated domestic assault case, the trial court properly admitted evidence of defendant’s prior assaults against the complainant to show the nature of the parties’ relationship and explain what might otherwise appear to be incongruous behavior to a jury, such as remaining with an abusive partner and delaying a report of abuse. The evidence was also relevant to address issues of motive and claims of fabrication. State v. Williams, 2010 VT 77, 188 Vt. 405, 9 A.3d 315, 2010 Vt. LEXIS 77 (2010).

In an aggravated domestic assault case, there was no merit to defendant’s claim that the probative value of evidence of his prior assaults against the complainant was substantially outweighed by the danger of unfair prejudice. The evidence was highly probative under the circumstances to explain the dynamic of the parties’ relationship and the complainant’s conduct both before and after the assault; the evidence did not raise the specter of unfair prejudice that could have resulted from testimony regarding other victims of abuse; and the trial court gave a limiting instruction. State v. Williams, 2010 VT 77, 188 Vt. 405, 9 A.3d 315, 2010 Vt. LEXIS 77 (2010).

Cited.

Cited in State v. Swift, 2004 VT 8, 2004 VT 8A, 176 Vt. 299, 844 A.2d 802, 2004 Vt. LEXIS 24 (2004).

§ 1042. Domestic assault.

Any person who attempts to cause or willfully or recklessly causes bodily injury to a family or household member or willfully causes a family or household member to fear imminent serious bodily injury shall be imprisoned not more than 18 months or fined not more than $5,000.00, or both.

HISTORY: Added 1993, No. 95 , § 2; 2007, No. 174 (Adj. Sess.), § 5.

History

Amendments

—2007 (Adj. Sess.). Substituted “18 months” for “one year” near the end.

ANNOTATIONS

Bifurcated trial.

Given the danger of unfair prejudice and the limited relevance of the evidence, bifurcation of a substantive domestic assault offense from an enhancement for violating a condition-of-release order was warranted. The facts supporting the no-harassment court-ordered condition, issued a year before the charged offense, held little probative value or factual connection to the incident that formed the basis of the domestic assault charge presented to the jury; admission of the condition-of-release order was highly prejudicial in that it established for the jury that a court had found it necessary to issue a protective order on behalf of the putative victim against defendant; and given the strong prejudicial nature of the condition-of-release order, the multiple references to it at trial, the noncumulative nature of the evidence, and the fact that the case ultimately came down to a credibility determination between defendant and his ex-girlfriend, the inclusion of the evidence was not harmless. State v. Brillon, 2010 VT 25, 187 Vt. 444, 995 A.2d 557, 2010 Vt. LEXIS 26 (2010).

Civil rights.

Where an arrestee was arrested for domestic assault, the arrestee’s supervisory and municipal liability claims failed because, inter alia, cases alleging constitutional violations were filed or decided after the alleged events; the town was entitled to municipal immunity with respect to the arrestee’s state law negligence claim. Kucera v. Tkac, 2013 U.S. Dist. LEXIS 50024 (D. Vt. Apr. 8, 2013).

Definition of “bodily injury”.

In prosecution of defendant under 13 V.S.A. § 1042 alleging that he had recklessly caused injury to his son, the State was required to prove bodily injury as defined in 13 V.S.A. § 1021(1) , and need not have applied the different and higher standard contained in 15 V.S.A. § 1101(1)(C) and 33 V.S.A. § 4912 , pertaining to abuse of children. State v. Baron, 2004 VT 20, 176 Vt. 314, 848 A.2d 275, 2004 Vt. LEXIS 23 (2004).

Evidence.

Trial court properly denied defendant’s motion for judgment of acquittal of domestic assault. During a 911 recording, the complainant identified defendant and stated that she was beaten with his fists; the evidence contained in the 911 recording was supported by the responding officers’ testimony and the photographs depicting the complainant’s injuries; the evidence was sufficient to establish that by striking the complainant, defendant consciously disregarded a substantial and unjustifiable risk of bodily injury; and the evidence admitted could reasonably convince a jury that the cut above the complainant’s eye was a “bodily injury” and that the complainant was a household member. State v. Kelley, 2016 VT 58, 202 Vt. 174, 148 A.3d 191, 2016 Vt. LEXIS 57 (2016).

Evidence that defendant struck the victim — even if accidentally — with sufficient force to split her lip was sufficient to convict him of recklessly causing bodily injury to the victim. State v. Harrington, 174 Vt. 584, 816 A.2d 501, 2002 Vt. LEXIS 333 (2002) (mem.).

The trial court did not commit prejudicial error by refusing to instruct the jury that defendant’s testimony from a relief-from-abuse proceeding concerning the incident could be considered as substantive evidence. State v. Harrington, 174 Vt. 584, 816 A.2d 501, 2002 Vt. LEXIS 333 (2002) (mem.).

Evidence showing that the victim, defendant’s estranged wife, was working on the roof of a small wooden shed and that defendant drove his truck into the shed at 20-30 miles an hour was sufficient to establish the element of attempt and to support defendant’s conviction for domestic assault. State v. Donaghy, 171 Vt. 435, 769 A.2d 10, 2000 Vt. LEXIS 328 (2000).

Evidence was sufficient to sustain defendant’s conviction for domestic assault, where defendant admitted spanking child, child’s bruises were not wholly consistent with a fall, and photographs corroborated State’s case. State v. Martin, 170 Vt. 614, 751 A.2d 769, 2000 Vt. LEXIS 28 (2000) (mem.).

Jury Instructions.

Trial court did not commit plain error in instructing the jury on domestic assault as a lesser included offense of first-degree aggravated domestic assault because while adding a sentence about strangulation as an example of serious bodily injury was unwise and potentially confusing, the State did not have to charge and did not charge that strangulation occurred, the State did not charge this as a strangulation case and the trial court instructed the jury that it had to find one of the alternative definitions of serious bodily harm, and the mental elements of first-degree aggravated domestic assault and domestic assault were different even under defendant’s theory of what occurred. State v. Carter, 2017 VT 32, 204 Vt. 383, 169 A.3d 225, 2017 Vt. LEXIS 49 (2017).

Cited.

Cited in State v. Swift, 2004 VT 8, 2004 VT 8A, 176 Vt. 299, 844 A.2d 802, 2004 Vt. LEXIS 24 (2004).

§ 1043. First degree aggravated domestic assault.

  1. A person commits the crime of first degree aggravated domestic assault if the person:
    1. attempts to cause or willfully or recklessly causes serious bodily injury to a family or household member; or
    2. uses, attempts to use, or is armed with a deadly weapon and threatens to use the deadly weapon on a family or household member; or
    3. commits the crime of domestic assault and has been previously convicted of aggravated domestic assault.
  2. A person who commits the crime of first degree aggravated domestic assault shall be imprisoned not more than 15 years or fined not more than $25,000.00, or both.
  3. Conduct constituting the offense of first degree aggravated domestic assault under this section shall be considered a violent act for the purpose of determining bail.

HISTORY: Added 1993, No. 95 , § 2.

ANNOTATIONS

Deadly weapon.

Because an object can be found to be a deadly weapon if it is objectively capable of causing harm, the box cutter here, which defendant was using to cut boxes and which thus could be understood to have sharp edges and to be capable of producing death or serious injury despite its unusual design, was a deadly weapon for purposes of conviction under the domestic assault statute. State v. Kuzawski, 2017 VT 118, 206 Vt. 351, 181 A.3d 62, 2017 Vt. LEXIS 143 (2017).

Evidence.

There was sufficient evidence that defendant meant to threaten the six-year-old victim when the evidence showed that the victim was bothering defendant while he worked and that he took the box cutter, held it close to her stomach, and said something to the effect that he was going to kill her that night while she was asleep. State v. Kuzawski, 2017 VT 118, 206 Vt. 351, 181 A.3d 62, 2017 Vt. LEXIS 143 (2017).

Acquittal of a charge against defendant of aggravated assault was properly denied because it was supported by a past recollection recorded statement by the claimant, as well as a 911 telephone call, observations by the responding officer, and photographs of the complainant’s injuries. State v. Spaulding, 2014 VT 91, 197 Vt. 378, 103 A.3d 487, 2014 Vt. LEXIS 98 (2014).

In a prosecution for aggravated domestic assault, the trial court did not err in denying defendant’s motion for judgment of acquittal on the basis that there was insufficient evidence that the knife used in the assault was a deadly weapon, even though the knife itself was not entered in evidence, and the State instead relied entirely on the victim’s testimony to prove this element of the crime. State v. Prior, 174 Vt. 49, 804 A.2d 770, 2002 Vt. LEXIS 135 (2002).

Jury Instructions.

Trial court’s instruction on first-degree aggravated assault tracked the language of the statute and contained definitions for both recklessness and willfulness, gave the jury the diminished capacity instruction requested by defendant, and explicitly instructed the jurors to consider whether defendant’s intoxication negated his ability to form willful intent. Further, because the instructions were clear that the jury was only to consider diminished capacity with willful intent and because there was nothing restricting recklessness to be considered in the alternative, the jury was necessarily unanimous on the intent element. State v. Peatman, 2018 VT 28, 207 Vt. 97, 185 A.3d 1257, 2018 Vt. LEXIS 28 (2018).

Trial court did not commit plain error in instructing the jury on domestic assault as a lesser included offense of first-degree aggravated domestic assault because while adding a sentence about strangulation as an example of serious bodily injury was unwise and potentially confusing, the State did not have to charge and did not charge that strangulation occurred, the State did not charge this as a strangulation case and the trial court instructed the jury that it had to find one of the alternative definitions of serious bodily harm, and the mental elements of first-degree aggravated domestic assault and domestic assault were different even under defendant’s theory of what occurred. State v. Carter, 2017 VT 32, 204 Vt. 383, 169 A.3d 225, 2017 Vt. LEXIS 49 (2017).

Operability of firearm.

Firearm employed in a threat against a family or household member need not be shown to be operable or loaded to constitute a deadly weapon; in the context of first-degree aggravated domestic assault, it is entirely irrelevant if a rifle brandished to punctuate a threat was loaded and able to fire when the threat was made, because this crime does not require an imminent threat. Consequently, a firearm did not have to be proven to be loaded and operable, immediately or otherwise, to constitute a deadly weapon in a prosecution for first-degree aggravated domestic assault, and the trial court did not err by omitting such a requirement in its instructions to the jury. State v. Longley, 2007 VT 101, 182 Vt. 452, 939 A.2d 1028, 2007 Vt. LEXIS 265 (2007).

Probable cause.

The facts known to the officer at the time defendant’s arrest was made were sufficient, for purposes of the felony escape statute, to support an arrest for the commission of a felony, despite the officer’s erroneous labelling of the charges as misdemeanors. The facts set forth in the charging affidavit were obtained from a sworn statement of defendant’s girlfriend, who stated that defendant placed a loaded pistol to her head and threatened to shoot her. This fact, in conjunction with other information, provided sufficient probable cause to support an arrest for aggravated domestic assault under 13 V.S.A. § 1043(a)(2) , a felony. State v. Powell, 167 Vt. 294, 707 A.2d 272, 1997 Vt. LEXIS 276 (1997) (mem.).

Defendant’s assault on his wife in direct violation of a temporary relief from abuse order, several earlier incidents of physical assault and harassment, and restraining her against her will and threatening her life with a loaded handgun supported felony charges of aggravated domestic assault and first degree unlawful restraint and also revocation of bail. State v. Plant, 165 Vt. 617, 686 A.2d 941, 1996 Vt. LEXIS 122 (1996) (mem.).

Cited.

Cited in State v. Sanders, 168 Vt. 60, 716 A.2d 11, 1998 Vt. LEXIS 155 (1998); State v. Karov, 170 Vt. 650, 756 A.2d 1236, 2000 Vt. LEXIS 137 (2000); State v. King, 2006 VT 18, 179 Vt. 400, 897 A.2d 543, 2006 Vt. LEXIS 30 (2006) (mem.).

§ 1044. Second degree aggravated domestic assault.

  1. A person commits the crime of second degree aggravated domestic assault if the person:
    1. Commits the crime of domestic assault and such conduct violates:
      1. specific conditions of a criminal court order in effect at the time of the offense imposed to protect that other person;
      2. a final abuse prevention order issued under 15 V.S.A. § 1103 or a similar order issued in another jurisdiction;
      3. a final order against stalking or sexual assault issued under 12 V.S.A. § 5133 or a similar order issued in another jurisdiction; or
      4. a final order against abuse of a vulnerable adult issued under 33 V.S.A. § 6935 or a similar order issued in another jurisdiction.
    2. Commits the crime of domestic assault; and
      1. has a prior conviction within the last 10 years for violating an abuse prevention order issued under section 1030 of this title; or
      2. has a prior conviction for domestic assault under section 1042 of this title or a prior conviction in another jurisdiction for an offense that, if committed within the State, would constitute a violation of section 1042 of this title.
    3. As used in this subsection:
      1. “Issued in another jurisdiction” means issued by a court in any other state; in a federally recognized Indian tribe, territory, or possession of the United States; in the Commonwealth of Puerto Rico; or in the District of Columbia.
      2. “Prior conviction in another jurisdiction” means a conviction issued by a court in any other state; in a federally recognized Indian tribe, territory, or possession of the United States; in the Commonwealth of Puerto Rico; or in the District of Columbia.
  2. A person who commits the crime of second degree aggravated domestic assault shall be imprisoned not more than five years or fined not more than $10,000.00, or both.
  3. Conduct constituting the offense of second degree aggravated domestic assault under this section shall be considered a violent act for the purpose of determining bail.

HISTORY: Added 1993, No. 95 , § 2; amended 2007, No. 174 (Adj. Sess.), § 6; 2013, No. 17 , § 11; 2019, No. 7 , § 1, eff. April 23, 2019.

History

Amendments

—2019. Subdiv. (a)(2)(B): Inserted “or a prior conviction in another jurisdiction for an offense that, if committed within the State, would constitute a violation of section 1042 of this title” to the end of the subdiv.

Subdiv. (a)(3): Deleted “, the term” following “this subsection” in the introductory language, designated existing provisions of subdiv. as subdiv. (a)(3)(A) and added subdiv. (a)(3)(B).

—2013. Subdiv. (a)(1)(B): Substituted “ 15 V.S.A. § 1103 ” for “section 1103 of Title 15” and inserted “or a similar order issued in another jurisdiction” following “§ 1103”.

Subdiv. (a)(1)(C): Substituted “a final” for “an” preceding “order” and “ 12 V.S.A. § 5133 or a similar order issued in another jurisdiction” for “chapter 178 of Title 12”.

Subdiv. (a)(1)(D): Substituted “a final” for “an” preceding “order” and “ 33 V.S.A. § 6935 or a similar order issued in another jurisdiction” for “chapter 69 of Title 33”.

Subdiv. (a)(3): Added.

—2007 (Adj. Sess.). Rewrote subsec. (a).

ANNOTATIONS

Bifurcated trial.

Given the danger of unfair prejudice and the limited relevance of the evidence, bifurcation of a substantive domestic assault offense from an enhancement for violating a condition-of-release order was warranted. The facts supporting the no-harassment court-ordered condition, issued a year before the charged offense, held little probative value or factual connection to the incident that formed the basis of the domestic assault charge presented to the jury; admission of the condition-of-release order was highly prejudicial in that it established for the jury that a court had found it necessary to issue a protective order on behalf of the putative victim against defendant; and given the strong prejudicial nature of the condition-of-release order, the multiple references to it at trial, the noncumulative nature of the evidence, and the fact that the case ultimately came down to a credibility determination between defendant and his ex-girlfriend, the inclusion of the evidence was not harmless. State v. Brillon, 2010 VT 25, 187 Vt. 444, 995 A.2d 557, 2010 Vt. LEXIS 26 (2010).

Construction.

In a post-conviction relief proceeding, defendant, by his plea of guilty, waived the argument that the trial court should not have convicted him of second degree aggravated domestic assault because he did not have a prior conviction for domestic assault; however, because he should not have been convicted of violating subdiv. (a)(2) of this section, the case was remanded for further proceedings on his claim that he received ineffective assistance of counsel. In re Andres, 2004 VT 71, 177 Vt. 511, 857 A.2d 803, 2004 Vt. LEXIS 248 (2004); In re Torres, 2004 VT 66, 177 Vt. 507, 861 A.2d 1055, 2004 Vt. LEXIS 250 (2004) (mem.).

Trial court’s decision that a single act which violated both subdivisions (a)(1) and (a)(2) of this section could be punished as separate crimes violated defendant’s right against double jeopardy; legislature did not intend to authorize separate sentences when domestic assault occurs under two separate aggravating circumstances. State v. Ritter, 167 Vt. 632, 714 A.2d 624, 1998 Vt. LEXIS 64 (1998) (mem.).

Instructions.

In a prosecution for second-degree aggravated domestic assault, where defendant assaulted complainant a short time after she had moved out of the apartment she shared with him for six months prior to the assault, because, under 15 V.S.A. § 1101(2) , two persons are “household members” if they either lived together or had a sexual relationship at any time prior to the assault, such evidence showed that complainant and defendant satisfied both of these alternative requirements; thus, the question of whether defendant and complainant were household members was not something that a rational jury could reasonably doubt and, accordingly, defendant was not entitled to an instruction on the lesser included offense of simple assault. State v. Swift, 2004 VT 8, 2004 VT 8A, 176 Vt. 299, 844 A.2d 802, 2004 Vt. LEXIS 24 (2004).

In a prosecution for second-degree aggravated domestic assault, judge’s instruction to the effect that the law does not recognize the fact of remaining in or returning to an apparently abusive relationship as evidence to question the witness’ credibility was not fair to defendant because the State had not presented any evidence on battered women’s syndrome to support the theory that the instruction articulated, and, even if the State had presented such evidence, the instruction was incorrect on the law regarding the proper role of the jury in such cases. State v. Swift, 2004 VT 8, 2004 VT 8A, 176 Vt. 299, 844 A.2d 802, 2004 Vt. LEXIS 24 (2004).

§§ 1045, 1046. [Reserved.]

§ 1047. Offense committed within the presence of a child.

When imposing sentence for an offense listed in this subchapter, the court may consider whether the offense was committed within the presence of a child.

HISTORY: Added 2007, No. 174 (Adj. Sess.), § 8.

§ 1048. Removal of firearms.

    1. When a law enforcement officer arrests, cites, or obtains an arrest warrant for a person for domestic assault in violation of this subchapter, the officer may remove any firearm: (a) (1) When a law enforcement officer arrests, cites, or obtains an arrest warrant for a person for domestic assault in violation of this subchapter, the officer may remove any firearm:
      1. that is contraband or will be used as evidence in a criminal proceeding; or
      2. that is in the immediate possession or control of the person being arrested or cited, in plain view of the officer at the scene of the alleged domestic assault, or discovered during a lawful search, including under exigent circumstances, if the removal is necessary for the protection of the officer, the alleged victim, the person being arrested or cited, or a family member of the alleged victim or of the person being arrested or cited.
    2. As used in this section, “family member” means any family member, a household member as defined in 15 V.S.A. § 1101(2) , or a child of a family member or household member.
  1. A person cited for domestic assault shall be arraigned on the next business day after the citation is issued except for good cause shown. Unless the person is held without bail, the State’s Attorney shall request conditions of release for a person cited or lodged for domestic assault.
    1. At arraignment, the court shall issue a written order releasing any firearms removed pursuant to subdivision (a)(1)(B) of this section unless: (c) (1) At arraignment, the court shall issue a written order releasing any firearms removed pursuant to subdivision (a)(1)(B) of this section unless:
      1. the firearm is being or may be used as evidence in a pending criminal or civil proceeding;
      2. a court orders relinquishment of the firearm pursuant to 15 V.S.A. chapter 21 (abuse prevention) or any other provision of law consistent with 18 U.S.C. § 922(g) (8), in which case the weapon shall be stored pursuant to 20 V.S.A. § 2307 ;
      3. the person requesting the return is prohibited by law from possessing a firearm; or
      4. the court imposes a condition requiring the defendant not to possess a firearm.
    2. If the court under subdivision (1) of this subsection orders the release of a firearm removed under subdivision (a)(1)(B) of this section, the law enforcement agency in possession of the firearm shall make it available to the owner within three business days after receipt of the written order and in a manner consistent with federal law.
    1. A law enforcement officer shall not be subject to civil or criminal liability for acts or omissions made in reliance on the provisions of this section. This section shall not be construed to create a legal duty to a victim or to any other person, and no action may be filed based upon a claim that a law enforcement officer removed or did not remove a firearm as authorized by this section. (d) (1) A law enforcement officer shall not be subject to civil or criminal liability for acts or omissions made in reliance on the provisions of this section. This section shall not be construed to create a legal duty to a victim or to any other person, and no action may be filed based upon a claim that a law enforcement officer removed or did not remove a firearm as authorized by this section.
    2. A law enforcement agency shall be immune from civil or criminal liability for any damage or deterioration of firearms removed, stored, or transported pursuant to this section. This subdivision shall not apply if the damage or deterioration occurred as a result of recklessness, gross negligence, or intentional misconduct by the law enforcement agency.
    3. This section shall not be construed to limit the authority of a law enforcement agency to take any necessary and appropriate action, including disciplinary action, regarding an officer’s performance in connection with this section.
  2. This section shall not be construed:
    1. to prevent a court from prohibiting a person from possessing firearms under any other provision of law;
    2. to prevent a law enforcement officer from searching for and seizing firearms under any other provision of law; or
    3. to authorize a warrantless search under any circumstances other than those permitted by this section.

HISTORY: Added 2017, No. 92 (Adj. Sess.), § 1, eff. Sept. 1, 2018.

Subchapter 7. Stalking

Law Reviews —

For note, “Closing the Loophole: Vermont’s Legislative Response to Stalking,” see 18 Vt. L. Rev. 477 (1994).

§ 1061. Definitions.

As used in this subchapter:

    1. “Course of conduct” means two or more acts over a period of time, however short, in which a person follows, monitors, surveils, threatens, or makes threats about another person, or interferes with another person’s property. This definition shall apply to acts conducted by the person directly or indirectly, and by any action, method, device, or means. Constitutionally protected activity is not included within the meaning of “course of conduct.” (1) (A) “Course of conduct” means two or more acts over a period of time, however short, in which a person follows, monitors, surveils, threatens, or makes threats about another person, or interferes with another person’s property. This definition shall apply to acts conducted by the person directly or indirectly, and by any action, method, device, or means. Constitutionally protected activity is not included within the meaning of “course of conduct.”
    2. As used in subdivision (A) of this subdivision (1), threaten shall not be construed to require an express or overt threat.
  1. “Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.
  2. “Reasonable person” means a reasonable person in the victim’s circumstances.
  3. “Stalk” means to engage purposefully in a course of conduct directed at a specific person that the person engaging in the conduct knows or should know would cause a reasonable person to fear for his or her safety or the safety of another or would cause a reasonable person substantial emotional distress.

HISTORY: Added 1993, No. 95 , § 1; amended 1999, No. 124 (Adj. Sess.), § 3; 2005, No. 83 , § 4; 2013, No. 150 (Adj. Sess.), § 1; 2015, No. 162 (Adj. Sess.), § 5.

History

Amendments

—2015 (Adj. Sess.). Section amended generally.

—2013 (Adj. Sess.). Subdiv. (2): Deleted the subdiv. text, defining “course of conduct”, and redesignated the remaining subdivs. accordingly.

—2005. Section amended generally.

—1999 (Adj. Sess.). Subdiv. (4): Inserted “telephonic or other electronically communicated” preceding “threats, vandalism”.

ANNOTATIONS

Generally.

In the absence of any elaboration, the appropriate definition of “harassment” in a relief-from-abuse order is that used in the stalking statute, which contains an element of threat. Thus, an instruction that allowed a conviction for violating a relief-from-abuse order on the basis of objectively annoying conduct was clearly error; moreover, defendant was significantly prejudiced by the instruction, as the State’s case, and the conviction, rested squarely on the overly broad definition of harassment used in the instruction. State v. Waters, 2013 VT 109, 195 Vt. 233, 87 A.3d 512, 2013 Vt. LEXIS 108 (2013).

Elements.

Stalking statute employs an objective standard by defining harassing behavior as conduct which would cause a reasonable person to fear bodily injury. Although the statute requires the jury to view a defendant’s conduct from the perspective of a reasonable person, the victim’s knowledge of the defendant is relevant to the question of whether the defendant’s actions would have caused a reasonable person to fear bodily injury; other states that have an objective standard in their stalking statute agree that this inquiry is measured by examining whether a reasonable person in the victim’s circumstances would be afraid. State v. Hinchliffe, 2009 VT 111, 186 Vt. 487, 987 A.2d 988, 2009 Vt. LEXIS 121 (2009).

Courts in stalking cases have admitted evidence of a defendant’s prior relationship with and conduct towards a victim to show that a victim’s fear is reasonable. In addition, a victim’s knowledge of a defendant’s conduct towards a third party may be relevant to whether it is reasonable for the victim to fear the defendant. State v. Hinchliffe, 2009 VT 111, 186 Vt. 487, 987 A.2d 988, 2009 Vt. LEXIS 121 (2009).

As defined by the Legislature, the elements of the crime of stalking do not require that the defendant have threatened violent behavior or unlawful restraint in the past, or that the victim feared for her safety or that she would be restrained. Threats are commonly present in stalking situations, and aid the State’s case if present, but their absence is not fatal to a stalking prosecution; similarly, the victim’s fear may be helpful to the State, if present, but the critical element of the crime is defined solely in objective terms—whether a “reasonable person” would fear “unlawful restraint”—and the absence of the victim’s fear is not determinative. State v. Ellis, 2009 VT 74, 186 Vt. 232, 979 A.2d 1023, 2009 Vt. LEXIS 80 (2009).

Particular cases.

There is no basis in the stalking statute to require that the perpetrator’s act and the victim’s fear be contemporaneous. Thus, because the victim stated that she was fearful after learning that petitioner had been caught peeping through her bedroom window, it was error to vacate his aggravated stalking conviction. In re Hoch, 2013 VT 83, 194 Vt. 575, 82 A.3d 1167, 2013 Vt. LEXIS 82 (2013).

In a stalking case, there was no merit to defendant’s argument that the complainant’s testimony at trial regarding her fear of defendant was not credible because it contradicted her statements to the police and her testimony at the motion to dismiss hearing. Through cross-examination, defendant demonstrated the alleged inconsistencies in the complainant’s reports to the police, her testimony at the pretrial hearing, and her testimony at trial; it was up to the jury to decide whether the complainant’s testimony regarding her fear of defendant was credible. State v. Hinchliffe, 2009 VT 111, 186 Vt. 487, 987 A.2d 988, 2009 Vt. LEXIS 121 (2009).

In prosecution of defendant for violating an abuse prevention order, an instruction that the jury could find that he had violated the order if it found that he had “followed or stalked” the victim was not plain error since the instruction defined the terms “following” and “stalk” in much the same way as those terms are defined in the stalking statute and the evidence relating to alternative theories under which a jury could convict was intertwined throughout the trial. State v. Prior, 2007 VT 1, 181 Vt. 564, 917 A.2d 466, 2007 Vt. LEXIS 1 (2007) (mem.).

Defendant failed in his argument that a post-conviction amendment to Vermont’s stalking statute mandated that he receive a new trial because, aside from defendant’s mere assertion that clarifying amendments are procedural per se, this suggested exception to the statutory provision on the retroactive effect of statutory amendments is unsupported by statutes or case law and the court declined to adopt it. State v. Van Aelstyn, 2007 VT 6, 181 Vt. 274, 917 A.2d 471, 2007 Vt. LEXIS 4, cert. denied, 552 U.S. 814, 128 S. Ct. 68, 169 L. Ed. 2d 17, 2007 U.S. LEXIS 10280 (2007).

Unlawful restraint.

Given the nature and purpose of the stalking law, the definitions of the crimes of unlawful restraint apply to the stalking law. State v. Ellis, 2009 VT 74, 186 Vt. 232, 979 A.2d 1023, 2009 Vt. LEXIS 80 (2009).

Cited.

Cited in State v. Premo, 168 Vt. 600, 719 A.2d 398, 1998 Vt. LEXIS 242 (1998); State v. Malshuk, 2004 VT 54, 177 Vt. 475, 857 A.2d 282, 2004 Vt. LEXIS 168 (2004) (mem.).

§ 1062. Stalking.

Any person who intentionally stalks another person shall be imprisoned not more than two years or fined not more than $5,000.00, or both.

HISTORY: Added 1993, No. 95 , § 1.

ANNOTATIONS

Constitutionality.

2015 version of the criminal stalking statute was facially constitutional. “True threats” are not constitutionally protected, and the expression potentially targeted by the statute’s definition of “harassing” consisted primarily, if not completely, of true threats; moreover, the statute’s application to only those threats that reasonably cause substantial emotional distress did not offend the First Amendment. State v. Noll, 2018 VT 106, 208 Vt. 474, 199 A.3d 1054, 2018 Vt. LEXIS 162 (2018).

2015 version of the criminal stalking statute did not violate the First Amendment as applied to defendant. A trier of fact could find that, in the context of defendant’s overall course of conduct as well as the specific context of the book he disseminated near the complainant’s workplace, the statement in the book “Shoot the terrorist? Or shoot the ‘artist?’ Neither are present” would cause a reasonable person to fear unlawful violence. State v. Noll, 2018 VT 106, 208 Vt. 474, 199 A.3d 1054, 2018 Vt. LEXIS 162 (2018).

Evidence.

Obsessive behavior, without threats or attempted acts of violence, could cause a reasonable person to fear unlawful restraint, but here, defendant’s actions did not rise to a level that would cause a reasonable person to have such fear, requiring the reversal of his stalking conviction. Almost all the interaction between defendant and the victim, who were high school students, occurred at school in public areas or at school-related public activities; there was no evidence that defendant tried to get the victim alone in a private setting; the victim did not testify that she feared unlawful restraint or bodily injury from defendant; the period in which defendant was on clear notice that his contact was unwanted was very short in relation to the cases where stalking had been found; there was almost no attempt to enlist the assistance of third parties; and defendant’s behavior was often more awkward than deliberate. State v. Ellis, 2009 VT 74, 186 Vt. 232, 979 A.2d 1023, 2009 Vt. LEXIS 80 (2009).

Limitations period.

Jury instruction for defendant’s criminal stalking charge was improper because in spite of defendant’s objection, the instruction explained that the jury could convict if it determined that defendant engaged in a course of conduct requiring at least two acts that met the elements of the statute. It did not instruct that at least one of the two acts that constituted part of the course of conduct needed to occur within the applicable limitations period, which allowed the jury to convict based entirely on two acts that occurred outside the limitations period. State v. Noll, 2018 VT 106, 208 Vt. 474, 199 A.3d 1054, 2018 Vt. LEXIS 162 (2018).

Chargeable course of conduct under the 2015 criminal stalking statute could include acts outside the limitations period, as long as at least one act that met the elements of the criminal stalking statute occurred within three years prior to the date the defendant was charged. State v. Noll, 2018 VT 106, 208 Vt. 474, 199 A.3d 1054, 2018 Vt. LEXIS 162 (2018).

§ 1063. Aggravated stalking.

  1. A person commits the crime of aggravated stalking if the person intentionally stalks another person, and:
    1. such conduct violates a court order that prohibits stalking and is in effect at the time of the offense;
    2. has been previously convicted of stalking or aggravated stalking;
    3. has been previously convicted of an offense an element of which involves an act of violence against the same person;
    4. the person being stalked is under 16 years of age; or
    5. had a deadly weapon, as defined in section 1021 of this title, in his or her possession while engaged in the act of stalking.
  2. A person who commits the crime of aggravated stalking shall be imprisoned not more than five years or be fined not more than $25,000.00, or both.
  3. Conduct constituting the offense of aggravated stalking shall be considered a violent act for the purposes of determining bail.

HISTORY: Added 1993, No. 95 , § 1; amended 2005, No. 83 , § 5; 2015, No. 162 (Adj. Sess.), § 5.

History

Amendments

—2015 (Adj. Sess.). Subdiv. (a)(4): Substituted “16 years of age” for “the age of 16”.

—2005. Subsec. (a): Made minor changes in punctuation in the introductory paragraph, made a minor stylistic change in subdiv. (4), and added subdiv. (5).

§ 1064. Defenses.

In a prosecution under this subchapter, it shall not be a defense that the defendant was not provided actual notice that the course of conduct was unwanted.

HISTORY: Added 2015, No. 162 (Adj. Sess.), § 5.

Chapter 21. Bribery

§ 1101. Bribing public officers or employees.

  1. A person shall not, directly or indirectly, corruptly, give, offer, or promise to an executive, legislative, or judicial officer, or to any employee, appointee, or designee of any executive, legislative, or judicial officer, or to a person who is a candidate or applicant for an executive, legislative, or judicial office, a gift or gratuity:
    1. with intent to influence his or her finding, decision, report, or opinion in any matter within his or her official capacity or employment; or
    2. for or because of any finding, decision, report, or opinion in any matter within his or her official capacity or employment.
  2. A person who violates this section shall, if the gift or gratuity is less than $500.00 in value, be imprisoned not more than two years or fined not more than $5,000.00, or both.  A person who violates this section shall, if the gift or gratuity is $500.00 or more in value, be imprisoned not more than five years or fined not more than $10,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23; 1987, No. 48 , § 1.

History

Source.

V.S. 1947, § 8522. P.L. § 8657. G.L. § 7052. P.S. § 5912. V.S. § 5085. R.L. § 4268. G.S. 115, § 7. R.S. 101, § 7.

Amendments

—1987. Section amended generally.

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

§ 1102. Public officers or employees accepting bribes.

  1. An executive, legislative, or judicial officer, or any employee, appointee, or designee of such officer, or a person who is a candidate or applicant for an executive, legislative, or judicial office, shall not, directly or indirectly, corruptly, ask, demand, exact, solicit, accept, receive, or agree to receive a gift or gratuity, or a promise to make a gift or to do an act beneficial to himself or herself or another:
    1. with the understanding that he or she will be influenced thereby in any finding, decision, report, or opinion in any matter within his or her official capacity or employment; or
    2. for or because of any finding, decision, report, or opinion in any matter within his or her official capacity or employment.
  2. A person who violates this section shall, if the gift, gratuity, or benefit is less than $500.00 in value, be imprisoned not more than two years or fined not more than $5,000.00, or both.  A person who violates this section shall, if the gift, gratuity, or benefit is $500.00 or more in value, be imprisoned not more than 10 years or fined not more than $10,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23; 1987, No. 48 , § 2.

History

Source.

V.S. 1947, § 8523. P.L. § 8658. G.L. § 7053. P.S. § 5913. V.S. § 5086. R.L. § 4269. G.S. 115, § 8. R.S. 97, § 8.

Amendments

—1987. Section amended generally.

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Acceptance of gift.

Proof that one assumed control of money passed over into his possession as a gift by another, and that one to whom it was so passed over understood at time that he accepted it, and that money had thereby passed from control of such other person into his control, showed an acceptance of the money. State v. Smith, 72 Vt. 366, 48 A. 647, 1900 Vt. LEXIS 152 (1900).

Definition.

Bribery is the receiving or offering any undue reward, by or to any person whomsoever, whose ordinary business or profession relates to the administration of public justice, in order to influence his behavior in office, and to incline him to act contrary to his duty and the known rules of honesty and integrity. State v. Smith, 72 Vt. 366, 48 A. 647, 1900 Vt. LEXIS 152 (1900).

Evidence.

In connection with evidence tending to show that a bribe was accepted by respondent on a certain day, evidence of negotiations with reference to bribe preliminary thereto and leading up to it was admissible. State v. Smith, 72 Vt. 366, 48 A. 647, 1900 Vt. LEXIS 152 (1900).

Law Reviews —

For note, “A Crisis in Confidence: Municipal Officials Under Fire,” see 16 Vt. L. Rev. 579 (1992).

§ 1103. Bribing triers of causes.

A person who corrupts or attempts to corrupt a master, auditor, referee, commissioner, juror, or arbitrator by giving, offering, or promising a gift or gratuity, with intent to bias the opinion or influence the decision of such person, in relation to a cause or matter pending in the court or before an inquest, or for the decision of which such officer has been chosen or appointed, shall be imprisoned not more than five years or fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972; 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8534. P.L. § 8659. G.L. § 7054. P.S. § 5914. V.S. § 5087. R.L. § 4270. G.S. 115, § 9. R.S. 97, § 9.

Revision note—

Reference to “master in chancery” was changed to “master” pursuant to 1971, No. 185 (Adj. Sess.), § 236.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

§ 1104. Triers of causes accepting bribes.

A person summoned as a juror, or chosen or appointed as a master, auditor, referee, commissioner, or arbitrator, who corruptly takes anything to give his or her verdict, award, or report, or corruptly receives a gift or gratuity from a party to an action, cause, or proceedings, for the trial or decision of which such juror was summoned, or for the hearing or determination of which such master, auditor, referee, commissioner, or arbitrator was chosen or appointed, shall be imprisoned not more than five years or fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972; 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8525. P.L. § 8660. G.L. § 7055. P.S. § 5915. V.S. § 5088. R.L. § 4271. G.S. 115, § 10. R.S. 97, § 10.

Revision note—

Reference to “master in chancery” was changed to “master” pursuant to 1971, No. 185 (Adj. Sess.), § 236.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

§ 1105. Public Utility Commission members or clerk not to accept pay except from State.

If a member of the Public Utility Commission or the clerk of such Commission receives pay for any service from any party other than the State, or for neglect of any service, he or she shall be imprisoned not more than six months or fined not more than $1,000.00, or both. This section shall not be construed to prevent the clerk of such Commission from receiving the usual fees for copies of records or papers in his or her office.

HISTORY: Amended 1959, No. 329 (Adj. Sess.), § 39, eff. March 1, 1961; 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8526. P.L. § 8661. G.L. § 7056. 1908, No. 116 , § 1. P.S. § 5916. V.S. § 5089. 1886, No. 23 , § 16.

Revision note

—2017. In the section catchline and section text, substituted “Public Utility Commission” for “Public Service Board” and in the section text substituted “Commission” for “board” in two places in accordance with 2017, No. 53 , § 12.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

—1959 (Adj. Sess.). Substituted “board” for “commission”.

§ 1106. Kickbacks; purchasing supplies.

  1. An officer or agent of, or person employed by the State or a county, municipality, supervisory union school district, or public institution in this State, who, being authorized to procure material, supplies, or other articles by purchase or contract, or to employ service or labor, shall not corruptly, directly or indirectly, ask, demand, exact, solicit, seek, accept, receive, or agree to receive for himself or herself or for another, any benefit from the person who makes such contract, furnishes such material, supplies, or other articles, or from a person who renders service or labor under such contract, nor shall a person give or offer corruptly such benefit.
  2. A person who violates this section shall, if the benefit has a value of less than $500.00, be imprisoned not more than two years or fined not more than $5,000.00, or both.  A person who violates this section shall, if the benefit is $500.00 or more in value, be imprisoned not more than five years or fined not more than $10,000.00, or both.

HISTORY: Amended 1987, No. 48 , § 3.

History

Source.

V.S. 1947, § 8579. P.L. § 8713. G.L. § 7103. 1917, No. 254 , § 6916. P.S. § 5961. 1904, No. 154 , § 1.

Amendments

—1987. Section amended generally.

Law Reviews —

For note, “A Crisis in Confidence: Municipal Officials Under Fire,” see 16 Vt. L. Rev. 579 (1992).

§ 1107. Kickbacks; granting licenses.

  1. An officer or agent of, or person employed by the State or a county, municipality, supervisory union school district, or public institution in this State, who, being authorized, individually or as a member of a board or commission or other governmental entity, to grant a license, permit, or other authorization or thing of value, shall not corruptly, directly or indirectly, ask, demand, exact, solicit, seek, accept, receive, or agree to receive for himself or herself or for another, any benefit from a person who applies for a license, permit, or other authorization or thing of value, nor shall a person corruptly give or offer such benefit.
  2. A person who violates this section shall, if the value of the benefit is less than $500.00, be imprisoned not more than two years or fined not more than $5,000.00, or both.  A person who violates this section shall, if the value of the benefit is $500.00 or more, be imprisoned not more than five years or fined not more than $10,000.00, or both.

HISTORY: Added 1987, No. 48 , § 4.

Law Reviews —

For note, “A Crisis in Confidence: Municipal Officials Under Fire,” see 16 Vt. L. Rev. 579 (1992).

§ 1108. Kickbacks; private corporations.

  1. An officer or agent of, or person employed by a private corporation or business entity, who, being authorized to procure material, supplies, or other articles by purchase or contract, or to employ service or labor, shall not, directly or indirectly, solicit, ask, demand, exact, seek, accept, receive, or agree to receive, with intent that he or she will be influenced adversely to the interest of the employer or principal, any benefit from a person who makes such contract, furnishes such material, supplies, or other articles, or from a person who renders service or labor under such contract, nor shall a person give or offer such benefit.
  2. A person who violates this section shall, if the value of the benefit is less than $500.00, be imprisoned not more than two years or fined not more than $5,000.00, or both.  A person who violates this section shall, if the value of the benefit is $500.00 or more, be imprisoned not more than five years or fined not more than $10,000.00, or both.

HISTORY: Added 1987, No. 48 , § 5.

Chapter 23. Burglary

§ 1201. Burglary.

  1. A person is guilty of burglary if he or she enters any building or structure knowing that he or she is not licensed or privileged to do so, with the intent to commit a felony, petit larceny, simple assault, or unlawful mischief. This provision shall not apply to a licensed or privileged entry, or to an entry that takes place while the premises are open to the public, unless the person, with the intent to commit a crime specified in this subsection, surreptitiously remains in the building or structure after the license or privilege expires or after the premises no longer are open to the public.
  2. As used in this section:
    1. “Building,” “premises,” and “structure” shall, in addition to their common meanings, include and mean any portion of a building, structure, or premises that differs from one or more other portions of such building, structure, or premises with respect to license or privilege to enter, or to being open to the public.
    2. “Occupied dwelling” means a building used as a residence, either full time or part time, regardless of whether someone is actually present in the building at the time of entry.
    1. A person convicted of burglary shall be imprisoned not more than 15 years or fined not more than $1,000.00, or both. (c) (1) A person convicted of burglary shall be imprisoned not more than 15 years or fined not more than $1,000.00, or both.
    2. A person convicted of burglary and who carries a dangerous or deadly weapon, openly or concealed, shall be imprisoned not more than 20 years or fined not more than $10,000.00, or both.
    3. A person convicted of burglary into an occupied dwelling:
      1. shall be imprisoned not more than 25 years or fined not more than $1,000.00, or both; or
      2. shall be imprisoned not more than 30 years or fined not more than $10,000.00, or both, if the person carried a dangerous or deadly weapon, openly or concealed, during commission of the offense.
    4. When imposing a sentence under this section, the court shall consider as an aggravating factor whether, during commission of the offense, the person entered the building when someone was actually present or used or threatened to use force against the occupant.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 2; 2013, No. 195 (Adj. Sess.), § 9.

History

Source.

V.S. 1947, § 8300. 1947, No. 202 , § 8453. P.L. § 8436. 1933, No. 150 . 1933, No. 157 , § 8087. 1921, No. 211 . G.L. § 6858. P.S. § 5751. V.S. § 4935. R.L. § 4133. 1874, No. 75 , § 1. G.S. 113, § 7. R.S. 95, § 4. 1818, p. 7. R. 1797, p. 159, § 13. R. 1787, p. 68.

Amendments

—2013 (Adj. Sess.). Subsec. (b): Deleted “, the words ‘building,’ ‘structure,’ and ‘premises”’ and made a minor stylistic change.

Subdiv. (b)(1): Inserted “‘Building,”’ “‘premises,”’ and “‘structure”’ at the beginning.

Subdivs. (b)(2) and (c)(2)-(c)(4): Added.

Subdiv. (c)(1): Amended generally.

—1981 (Adj. Sess.). Section amended generally.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

CROSS REFERENCES

Conviction of larceny in burglary prosecution, see § 2507 of this title.

ANNOTATIONS

Allegation.

The allegation of the ultimate felony intended with respect to a prosecution for breaking and entering with intent to commit a felony need not be set out as fully and specifically as would be required in an indictment for the actual commission of that felony. State v. Barr, 126 Vt. 112, 223 A.2d 462, 1966 Vt. LEXIS 173 (1966).

Breaking.

“Breaking,” which is an essential element of the crime of breaking and entering in the nighttime, implies the use of force, no matter how slight. State v. Cline, 139 Vt. 451, 430 A.2d 455, 1981 Vt. LEXIS 482 (1981).

Entering through an already open window is not sufficient to constitute a breaking. State v. Cline, 139 Vt. 451, 430 A.2d 455, 1981 Vt. LEXIS 482 (1981).

Where evidence showed that defendant entered building through window but did not establish whether he had to open window to enter, the state’s evidence did not establish the prima facie case necessary for finding defendant broke into building within meaning of statute relating to offense of breaking and entering in nighttime. State v. Cline, 139 Vt. 451, 430 A.2d 455, 1981 Vt. LEXIS 482 (1981).

Word “break” as used in this section implied use of force. State v. Hart, 119 Vt. 54, 117 A.2d 387, 1955 Vt. LEXIS 89 (1955).

Where there was no evidence fairly and reasonably tending to establish element of “breaking” as alleged, respondent’s motion for a directed verdict should be granted. State v. Hart, 119 Vt. 54, 117 A.2d 387, 1955 Vt. LEXIS 89 (1955).

Enhanced penalties.

Defendant’s prior burglary convictions were violent crimes for purposes of federal career offender provision, regardless of fact that burglaries involved “seasonal dwellings” or “summer camps” as opposed to permanent residences. United States v. Fredette, 15 F.3d 272, 1994 U.S. App. LEXIS 1642 (2d Cir.), cert. denied, 511 U.S. 1114, 114 S. Ct. 2119, 128 L. Ed. 2d 677, 1994 U.S. LEXIS 3914 (1994), cert. denied, 511 U.S. 1149, 114 S. Ct. 2180, 128 L. Ed. 2d 899, 1994 U.S. LEXIS 4422 (1994).

Evidence.

There was sufficient evidence to support the burglary conviction. The evidence, including a project manager’s testimony that roofing material was stored inside the unfinished house and that it was unlikely that an employee moved the material, as well as eyewitness testimony that defendant moved the material from a location by the house to a portable toilet before his cousin pulled in to load the materials, supported a finding that defendant had actually entered the structure to remove the materials; furthermore, the unfinished house could constitute an enclosure despite the absence of a roof, windows, and doors. State v. Lampman, 2017 VT 114, 206 Vt. 323, 181 A.3d 54, 2017 Vt. LEXIS 135 (2017).

In the case of defendant convicted of burglary, where a person whose general description corresponded with that of defendant was in the burglarized building only a few minutes after an alarm signaled that an entry had been made, when that person emerged from the building, he fled into a wooded area near the building, after being ordered to stop by the investigating officer, defendant was discovered lying face down in the woods, partially concealed by leaves and wearing the same clothing worn by the person who had been seen fleeing the building, a lighted flashlight was found close by, and a sneaker print, corresponding to the sole of sneakers worn by defendant was discovered near the building, the evidence, although entirely circumstantial, was sufficiently cogent and persuasive to lift its effect above mere suspicion. State v. Partlow, 143 Vt. 33, 460 A.2d 454, 1983 Vt. LEXIS 457 (1983).

Evidence justified jury’s finding that defendant was not only present at scene of burglary, with knowledge of companion’s criminal objective, but was guilty of participation in its accomplishment by acting as lookout rather than abandoning project as he could have without consequences. State v. Nicasio, 136 Vt. 162, 385 A.2d 1096, 1978 Vt. LEXIS 709 (1978).

Where defendant was charged with burglary in the nighttime and the state offered no evidence of the nighttime element of the offense, it was error to deny motion for verdict of acquittal on the ground that the evidence was insufficient to sustain a conviction of the offense charged. State v. Boutin, 134 Vt. 151, 352 A.2d 689, 1976 Vt. LEXIS 617 (1976).

Suspicion that accused participated in burglary, however strong, will not take place of evidence supporting accused’s participation in burglary. State v. Mecier, 126 Vt. 260, 227 A.2d 298, 1967 Vt. LEXIS 181 (1967).

Evidence which only showed that defendant took alleged accomplices to the scene of crime and later picked them up near the scene, and which failed to show that defendant encouraged or incited the burglary or that there was a preconceived plan in which defendant joined to commit the burglary was not sufficient to sustain defendant’s conviction as principal in burglary. State v. Mecier, 126 Vt. 260, 227 A.2d 298, 1967 Vt. LEXIS 181 (1967).

Indictment and information.

In burglary prosecution initially charging entering with intent to commit larceny and unlawful mischief, mid-trial amendment to information deleting allegation of intent to steal alcohol and to damage building was permissible since portion removed was an unnecessary allegation, as state was not required to specify what defendant intended to steal. State v. Verge, 152 Vt. 93, 564 A.2d 1353, 1989 Vt. LEXIS 144 (1989).

Instructions.

Jury instruction that defines “building or structure” to include enclosures that lack a roof is consistent with the plain language of the burglary statute. State v. Lampman, 2017 VT 114, 206 Vt. 323, 181 A.3d 54, 2017 Vt. LEXIS 135 (2017).

In instructing the jury that “a building or structure can exist without a roof and without being closed in” the trial court did not relieve the State of its burden of proving beyond a reasonable doubt that the construction project was a “building or structure”; rather, its instructions framed the legal definition of “building or structure” to guide the jury’s assessment of whether this element was satisfied, but left the question whether defendant had entered a “building or structure” to the jury. State v. Lampman, 2017 VT 114, 206 Vt. 323, 181 A.3d 54, 2017 Vt. LEXIS 135 (2017).

Inclusion of “an instruction within an instruction” in a burglary charge is actually a wise practice. Why this is the “better practice” is clear: to determine whether a defendant had the requisite intent to commit a crime, a juror would have to know the elements of that crime; without being aware of the elements of the intended crime, a juror might mistakenly convict a defendant on faulty assumptions about what is criminal and what is not. State v. Langdell, 2009 VT 125, 187 Vt. 576, 989 A.2d 556, 2009 Vt. LEXIS 148 (2009) (mem.).

Jury instruction regarding the specific intent element of the burglary charge was not so misleading as to amount to plain error. Because the inclusion of “an instruction within an instruction” in a burglary charge was actually a wise practice, inclusion of the elements of larceny did not amount to plain error, and because the rest of the instruction adequately described every other element of both burglary and larceny, it was hard to believe that a juror would have been confused into thinking that throwing a rock through a door was an element of larceny. State v. Langdell, 2009 VT 125, 187 Vt. 576, 989 A.2d 556, 2009 Vt. LEXIS 148 (2009) (mem.).

Where at defendant’s trial for aiding in the crime of breaking and entering a dwelling house with intent to commit larceny trial court instructed the jury that “under the law a person is presumed to intend the natural and probable consequences of his acts,” the instruction violated defendant’s right to due process of law, since it could reasonably be interpreted as requiring a conclusive presumption on the element of intent which shifted the burden of proof on that element to defendant and the court could not discount the possibility that the jurors actually proceeded upon it rather than upon additional instructions which the state claimed corrected the erroneous charge. State v. Martell, 143 Vt. 275, 465 A.2d 1346, 1983 Vt. LEXIS 513 (1983).

Where unlawful trespass was held not to be a lesser included offense of burglary, the trial court erred in giving the lesser included offense instruction. State v. Savo, 139 Vt. 644, 433 A.2d 292, 1981 Vt. LEXIS 546 (1981).

Where defendant was charged with burglary in the nighttime and there was no evidence of the nighttime element of the offense, the court, absent a grant of motion for acquittal, which would have been proper, should have placed before the jury only the question of whether there was a burglary in the daytime, and instructions that if the jury could not find defendant guilty of burglary in the nighttime it could find him guilty of burglary in the daytime, without any definition of nighttime and daytime, was error, and reversal was required. State v. Boutin, 134 Vt. 151, 352 A.2d 689, 1976 Vt. LEXIS 617 (1976).

Intent.

There was sufficient evidence that defendant, who was convicted of burglary, had the specific intent to commit larceny. There was evidence that defendant forcibly entered an antique shop’s building and rifled through drawers, cupboards, and dressers, although nothing was missing from the shop; furthermore, although defendant presented evidence of his intoxication, it was up to the jury to weigh this evidence and determine whether he had the requisite intent. State v. Langdell, 2009 VT 125, 187 Vt. 576, 989 A.2d 556, 2009 Vt. LEXIS 148 (2009) (mem.).

Evidence showing that: defendant told the police that he went to the restaurant to get some money because he was in debt; he broke a rear window to gain entry; he damaged a safe, nearly breaking off the safe’s handle, was sufficient to convince a reasonable juror beyond a reasonable doubt that defendant entered the restaurant intending to steal. State v. Ingerson, 2004 VT 36, 176 Vt. 428, 852 A.2d 567, 2004 Vt. LEXIS 319 (2004).

Intent to commit a larceny at the time of entry, like other elements of the crime, must be proven beyond a reasonable doubt. State v. Savo, 139 Vt. 644, 433 A.2d 292, 1981 Vt. LEXIS 546 (1981).

Term “or other felony” is not a limitation on what precedes, but is inserted to extend scope of section to other offenses not specifically named therein. State v. Demag, 118 Vt. 273, 108 A.2d 390, 1954 Vt. LEXIS 116 (1954).

Breaking and entry constituted burglary if done with intent to commit larceny, regardless of whether larceny done or intended was petit larceny or grand larceny, although petit larceny was not a statutory felony. State v. Hodgdon, 89 Vt. 148, 94 A. 301 (1915) same case 89 Vt. 510, 96 A. 4;State v. Keyser, 56 Vt. 622, 1884 Vt. LEXIS 109 (1884).

Burglariously entering a dwelling house, with intent to commit adultery, did not constitute an offense within this section. State v. Cooper, 16 Vt. 551, 1844 Vt. LEXIS 123 (1844).

Lesser included offenses.

Although elements of entry and knowledge were common to both burglary and criminal trespass statutes, burglary did not require entry into a “dwelling house” and trespass did not require intent to commit a felony or other crime, and therefore trespass was not a lesser included offense of burglary. State v. Crawford, 169 Vt. 371, 737 A.2d 366, 1999 Vt. LEXIS 204 (1999).

When a nonresidence is involved, the unlawful trespass statute requires that the normal access to the building be locked, or that certain methods of notice against trespass be employed, and the additional element of proof results in unlawful trespass not being a lesser included offense of burglary. State v. Savo, 139 Vt. 644, 433 A.2d 292, 1981 Vt. LEXIS 546 (1981).

Where unlawful trespass was held not to be a lesser included offense of burglary. State v. Nicasio, 136 Vt. 162, 385 A.2d 1096 (1978), was overruled insofar as it intimated that unlawful entry of a locked nonresidence was a lesser included offense of burglary in the nighttime. State v. Savo, 139 Vt. 644, 433 A.2d 292, 1981 Vt. LEXIS 546 (1981).

Particular cases.

Defendant’s restraint of the victims after he entered their home created a danger independent of the risk posed by burglars entering an occupied home intent on theft. Thus, the burglary was a separate offense from kidnapping, and the motion to dismiss the kidnapping charge was properly denied. State v. Jones, 2011 VT 90, 190 Vt. 586, 44 A.3d 148, 2011 Vt. LEXIS 93 (2011).

For purposes of enhanced penalty applicable to career criminals under 18 U.S.C. § 924(e) (1), prior conviction of this section constitutes a “violent felony.” United States v. Mitchell, 745 F. Supp. 201, 1990 U.S. Dist. LEXIS 12278 (D. Vt. 1990), aff'd, 932 F.2d 1027, 1991 U.S. App. LEXIS 8214 (2d Cir. 1991).

Places.

A railroad depot was a warehouse within meaning of this section. State v. Bishop, 51 Vt. 287, 1878 Vt. LEXIS 161 (1878).

Time of breaking and entering.

Under this section and § 1202 of this title, it was as much burglary to break and enter in daytime as it was to break and enter in nighttime; the effect of the statute being, not to make two crimes, but to make two grades of same crime. State v. Newell, 93 Vt. 81, 106 A. 561, 1919 Vt. LEXIS 138 (1919).

While it was necessary to allege the aggravating circumstances to convict of higher grade of burglary, it was not necessary to allege that offense was committed in daytime to convict of lower grade. State v. Newell, 93 Vt. 81, 106 A. 561, 1919 Vt. LEXIS 138 (1919).

Cited.

Cited in State v. Dusablon, 142 Vt. 95, 453 A.2d 79, 1982 Vt. LEXIS 607 (1982); State v. Zehner, 142 Vt. 251, 453 A.2d 1126, 1982 Vt. LEXIS 631 (1982); State v. Jarrett, 143 Vt. 191, 465 A.2d 238, 1983 Vt. LEXIS 491 (1983); State v. Wilkins, 144 Vt. 22, 473 A.2d 295, 1983 Vt. LEXIS 599 (1983); State v. Comes, 144 Vt. 103, 472 A.2d 1253, 1984 Vt. LEXIS 412 (1984); In re Kasper, 145 Vt. 117, 483 A.2d 608, 1984 Vt. LEXIS 553 (1984); State v. Corliss, 145 Vt. 169, 484 A.2d 924, 1984 Vt. LEXIS 563 (1984); State v. Tedesco, 147 Vt. 133, 513 A.2d 1164, 1986 Vt. LEXIS 379 (1986); In re Bruyette, 150 Vt. 557, 556 A.2d 568, 1988 Vt. LEXIS 217 (1988); State v. Carroll, 147 Vt. 108, 513 A.2d 1159, 1986 Vt. LEXIS 374 (1986); State v. Ashley, 161 Vt. 65, 632 A.2d 1368, 1993 Vt. LEXIS 100 (1993); State v. Graves, 145 Vt. 271, 487 A.2d 157, 1984 Vt. LEXIS 589 (1984); State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970); State v. McLeran, 1 Aik. 311 (Vt. Mar. 1, 1826).

§§ 1202, 1203. Repealed. 1981, No. 223 (Adj. Sess.), § 24.

History

Former §§ 1202, 1203. Former § 1202, relating to burglary in daytime, was derived from V.S. 1947, § 8301; 1947, No. 202 , § 8454; P.L. § 8437; G.L. § 6859; P.S. § 5752; V.S. § 4936; R.L. § 4134 and 1864, No. 25 and was amended by 1971, No. 199 (Adj. Sess.), § 15.

Former § 1203, relating to burglary of sleeping apartments in nighttime, was derived from V.S. 1947, § 8302; P.L. § 8438; G.L. § 6860; P.S. § 5733; V.S. § 4937; R.L. § 4135 and 1864, No. 75 , § 2 and was amended by 1971, No. 199 (Adj. Sess.), § 15.

§ 1204. Making or having burglar’s tools.

A person who manufactures or knowingly has in his or her possession any engine, machine, tool, or implement, adapted and designed for cutting through, forcing or breaking open any building, room, vault, safe, or other depository, in order to steal therefrom money or other property, knowing the same to be adapted and designed for such purpose, with intent to use or employ the same therefor, shall be imprisoned not more than 20 years or fined not more than $10,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8303. 1947, No. 202 , § 8456. P.L. § 8439. G.L. § 6861. P.S. § 5754. V.S. § 4938. R.L. § 4136. G.S. 113, § 8. 1850, No. 19 .

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Possession of tools by wife.

Under indictment charging husband and wife jointly with having certain burglarious implements and tools in their possession, possession by wife while husband was with her was prima facie innocent, as under coercion of husband, but for possession by her in the absence of husband, though by his direction, she would be responsible. State v. Potter, 42 Vt. 495, 1869 Vt. LEXIS 111 (1869).

Chapter 25. Children and Persons Who Are Incompetent

History

Amendments

—2013 (Adj. Sess.). Chapter heading: Act 96 deleted “Incompetent” preceding “Persons” and inserted “Who are Incompetent” following “Persons”.

§ 1301. Contributing to juvenile delinquency.

A person who causes, encourages, or contributes to the delinquency of a minor shall be imprisoned not more than two years or fined not more than $2,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 4; 1995, No. 147 (Adj. Sess.), § 2.

History

Source.

1949, No. 195 , § 1.

Amendments

—1995 (Adj. Sess.) Section amended generally.

—1971 (Adj. Sess.). Omitted reference to offense constituting a misdemeanor.

§ 1302. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 1302. Former § 1302, relating to jurisdiction of offenses, was derived from 1949, No. 195 , § 2 and amended by 1965, No. 194 , § 10.

§ 1303. Abandonment or exposure of baby.

  1. A person who abandons or exposes a child under the age of two years whereby the life or health of such child is endangered shall be imprisoned not more than 10 years or fined not more than $10,000.00, or both.
    1. It is not a violation of this section if a person voluntarily delivers a child not more than 30 days of age to: (b) (1) It is not a violation of this section if a person voluntarily delivers a child not more than 30 days of age to:
      1. An employee, staff member, or volunteer at a health care facility.
      2. An employee, staff member, or volunteer at a fire station, police station, place of worship, or an entity that is licensed or authorized in this State to place minors for adoption.
      3. A 911 emergency responder at a location where the responder and the person have agreed to transfer the child.
    2. A person voluntarily delivering a child under this subsection shall not be required to reveal any personally identifiable information, but may be offered the opportunity to provide information concerning the child’s or family’s medical history.
    3. A person or facility to whom a child is delivered pursuant to this subsection shall not be required to reveal the name of the person who delivered the child unless there is a reasonable suspicion that the child has been abused and shall be immune from civil or criminal liability for any action taken pursuant to this subsection.
    4. A person or facility to whom a child is delivered pursuant to this subsection shall:
      1. Take temporary custody of the child and ensure that he or she receives any necessary medical care.
      2. Provide notice that he, she, or it has taken temporary custody of the child to a local law enforcement agency or the Vermont State Police.
      3. Provide notice that he, she, or it has taken temporary custody of the child to the Department for Children and Families, which shall take custody of the child as soon as practicable.
    5. The Department for Children and Families shall develop and implement a public information program to increase public awareness about the provisions of the Baby Safe Haven Law, and shall report on the elements and status of the program by January 15, 2006, to the chairs of the Senate Committee on Health and Welfare and the House Committee on Human Services.
    6. Except as provided in subdivision (3) of this subsection, this subsection shall not be construed to limit or otherwise affect procedures under 33 V.S.A. chapter 53 regarding termination of parental rights and regarding children in need of care or supervision.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 2005, No. 124 (Adj. Sess.), § 3; 2007, No. 102 (Adj. Sess.), § 1.

History

Source.

V.S. 1947, § 8260. P.L. § 8395. G.L. § 6827. P.S. § 5722. 1896, No. 54 , § 1.

Amendments

—2007 (Adj. Sess.) Inserted “shall not be required to reveal the name of the person who delivered the child unless there is a reasonable suspicion that the child has been abused and” in subdiv. (b)(3); inserted “local” preceding “law enforcement agency” and added “or the Vermont state police” thereafter in subdiv. (b)(4)(B); and added subdiv. (b)(6).

—2005 (Adj. Sess.). Designated the existing provisions of the section as subsec. (a), and in that subsec., substituted “$10,000.00” for “$1,000.00” and added subsec. (b).

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

2005, No. 124 (Adj. Sess.), § 1, provides: “This act shall be known as the ‘Baby Safe Haven Law’ ”.

§ 1304. Cruelty to a child.

  1. A person over 16 years of age, having the custody, charge, or care of a child, who willfully assaults, ill treats, neglects, or abandons or exposes such child, or causes or procures such child to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner to cause such child unnecessary suffering, or to endanger his or her health, shall be imprisoned not more than two years or fined not more than $500.00, or both.
    1. If the child suffers death, or serious bodily injury as defined in subdivision 1021(2) of this title, or is subjected to sexual conduct as defined in subdivision 2821(2) of this title, the person shall be imprisoned not more than ten years or fined not more than $20,000.00, or both. (b) (1) If the child suffers death, or serious bodily injury as defined in subdivision 1021(2) of this title, or is subjected to sexual conduct as defined in subdivision 2821(2) of this title, the person shall be imprisoned not more than ten years or fined not more than $20,000.00, or both.
    2. It shall be an affirmative defense to a charge under this subsection (b), if proven by a preponderance of the evidence, that the defendant engaged in the conduct set forth in subsection (a) of this section because of a reasonable fear that he or she or another person would suffer death, bodily injury, or serious bodily injury as defined in section 1021 of this title, or sexual assault in violation of chapter 72 of this title.
  2. The provisions of this section do not limit or restrict the prosecution for other offenses arising out of the same conduct, nor shall it limit or restrict defenses available under common law.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 2015, No. 60 , § 25.

History

Source.

V.S. 1947, § 8261. P.L. § 8396. G.L. § 6828. P.S. § 5723. 1896, No. 54 , § 2.

Amendments

—2015. Substituted “A Child” for “Children Under 10 By One Over 16” in the section title.

Subsec. (a): Added designation (a), substituted “A person over 16 years of age” for “A person over the age of 16 years” in the first sentence and deleted “under 10 years of age” following “charge or care of a child”.

Subdivs. (b)(1) and (b)(2): Added.

Subsec. (c): Added.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Complaint.

It was essential that complaint allege that abandonment was wilful and that it was done in a manner to cause child unnecessary suffering or to endanger its health. In re Greenough, 116 Vt. 277, 75 A.2d 569, 1950 Vt. LEXIS 147 (1950).

Construction.

Term “endanger” in the cruelty to children statute refers to a potential or possibility of injury. The term does not refer to conduct that will result or actually results in harm, but rather to conduct that could or might result in harm. State v. Amsden, 2013 VT 51, 194 Vt. 128, 75 A.3d 612, 2013 Vt. LEXIS 49 (2013).

Particular cases.

In regard to a conviction for cruelty to a child, there was sufficient evidence to establish that the bridge abutment where the child was found was “dangerous and unhealthy.” The area contained broken glass, feces, and urine; it was directly adjacent to a brook, access to which was unimpeded by any protective barrier; the child was without a shirt and barefoot; defendant did not notice that her child had wandered away; and even if defendant had been aware of her child’s movements in this obviously dangerous area, the trial court concluded she would have been unable to assist him, if needed, because of her inebriation. State v. Amsden, 2013 VT 51, 194 Vt. 128, 75 A.3d 612, 2013 Vt. LEXIS 49 (2013).

Phrase “in a manner to endanger” can have no meaning independent of the verbs it modifies in the cruelty to children statute, nor can the verbs as used in this statute be understood without reference to the modifying phrase. The proscribed act, then, is not simply neglecting or exposing, but neglecting or exposing in a manner to endanger the child’s health or welfare; to trigger criminal liability, the mental state that must accompany this unitary act is willfulness. State v. Amsden, 2013 VT 51, 194 Vt. 128, 75 A.3d 612, 2013 Vt. LEXIS 49 (2013).

Willfulness.

Willful conduct is, at a minimum, conduct undertaken intentionally and by design, as distinguished from that which is thoughtless or accidental. As a logical matter, to intentionally and designedly—or consciously and purposefully—expose or neglect a child in a manner that endangers that child, a defendant must have some knowledge of those dangerous conditions; thus, it is sufficient that a defendant consciously and purposefully cause a child to be exposed to conditions that she knows endanger his health. State v. Amsden, 2013 VT 51, 194 Vt. 128, 75 A.3d 612, 2013 Vt. LEXIS 49 (2013).

Evidence supported a finding that defendant’s conduct was willful under the cruelty-to-children statute when defendant took her four-year-old son under a bridge in an area littered with glass, feces, and trash adjacent to a brook to which the child had unfettered access, because so intoxicated that she could not supervise him, and engaged in sex without noticing her son’s whereabouts. There was no suggestion that defendant accidentally or thoughtlessly took her son to an area she knew to be dangerous. State v. Amsden, 2013 VT 51, 194 Vt. 128, 75 A.3d 612, 2013 Vt. LEXIS 49 (2013).

Cited.

Cited in In re Pernicka, 144 Vt. 319, 478 A.2d 224, 1984 Vt. LEXIS 477 (1984); In re Pernicka, 147 Vt. 180, 513 A.2d 616, 1986 Vt. LEXIS 382 (1986); State v. Valley, 153 Vt. 380, 571 A.2d 579, 1989 Vt. LEXIS 259 (1989); State v. Searles, 159 Vt. 525, 621 A.2d 1281, 1993 Vt. LEXIS 15 (1993).

§ 1305. Cruelty by person having custody of another.

A person having the custody, charge, care, or control of another person, who inflicts unnecessary cruelty upon such person, or unnecessarily and cruelly fails to provide such person with proper food, drink, shelter, or protection from the weather, or unnecessarily and cruelly neglects to properly care for such person, shall be imprisoned not more than one year or fined not more than $200.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15.

History

Source.

V.S. 1947, § 8262. P.L. § 8397. G.L. § 6829. P.S. § 5724. 1896, No. 55 , § 1.

Amendments

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Cited.

Cited in State v. Houle, 162 Vt. 41, 642 A.2d 1178, 1994 Vt. LEXIS 46 (1994).

§ 1306. Mistreatment of persons with impaired cognitive function.

A person who willfully and maliciously teases, plagues, annoys, angers, irritates, maltreats, worries, or excites a person with a developmental or psychiatric disability or impaired cognitive function shall be imprisoned not more than one year or fined not more than $100.00 nor less than $5.00, or both.

HISTORY: Amended 2013, No. 96 (Adj. Sess.), § 51.

History

Source.

V.S. 1947, § 8263. P.L. § 8398. G.L. § 6830. P.S. § 5725. 1906, No. 188 , § 1. V.S. §§ 5047, 5048. 1888, No. 90 , § 1. R.L. § 4235. 1863, No. 9 .

Amendments

—2013 (Adj. Sess.). Section amended generally.

§ 1307. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 1307. Former § 1307, relating to jurisdiction of justice with county and district courts of offenses under 13 V.S.A. 1306, was derived from V.S. 1947, § 8264; P.L. § 8399; G.L. § 6930; P.S. § 5725; 1906, No. 188 , § 1; V.S. §§ 5047, 5048; 1888, No. 90 , § 1; R.L. § 4235 and 1863, No. 9 and was amended by 1965, No. 194 , § 10 and 1971, No. 199 (Adj. Sess.), § 15.

§§ 1308, 1309. Repealed. 1991, No. 70, § 5, eff. May 1, 1992.

History

Former §§ 1308, 1309. Former § 1308, relating to penalty for furnishing tobacco to persons under 17 yrs of age, was derived from V.S. 1947, § 8508; No. 213, § 1; P.L. § 8644; G.L. § 7041; P.S. § 5903; R. 1906, § 5759; 1990, No. 102 , § 1; V.S. § 5156; and 1888, No. 132 , §§ 1, 2, 3. The subject matter is now covered by section 1007 of Title 7.

Former § 1309, relating to posting copy of 13 V.S.A. § 1308 in place of business selling tobacco, was derived from V.S. 1947, § 8511; 1937, No. 214 ; P.L. § 8646; 1933, No. 157 , § 8287; G.L. § 7042; 1923, No. 235 ; P.S. § 5904; and 1900, No. 102 , § 1. The subject matter is now covered by section 1006 of Title 7.

§ 1310. Discarded ice boxes.

  1. A person shall not have in his or her possession where it is accessible to children an ice box, refrigerator, freezer, or similar cabinet virtually airtight and large enough for a child to enter, which has been discarded from use, unless the door or fastener thereof has been removed so that a child who enters the same can escape.
  2. A person who violates subsection (a) of this section shall be fined not more than $100.00 or imprisoned not more than 30 days, or both.
History

Source.

1955, No. 72 , §§ 1, 2.

§ 1311. Unlawful sheltering; aiding a runaway child.

  1. As used in this section:
    1. “Child’s residence” means:
      1. the residence of an unemancipated child’s parent, foster parent, guardian, legal custodian, parent lawfully exercising parent-child contact, or other person having legal or physical responsibility for the child;
      2. the residence where a child has been placed by the child’s parent, foster parent, guardian, legal custodian, parent lawfully exercising parent-child contact, or by the Department for Children and Families or any other agency or department of the State; or
      3. any other lawfully authorized place of abode.
    2. “Runaway child” means an unemancipated child under 18 years of age, voluntarily absent from the child’s residence without the consent of his or her parent, foster parent, guardian, legal custodian, parent lawfully exercising parent-child contact, or other person having legal or physical responsibility for the child.
    3. “Shelter” means to provide a physical haven, home, or lodging.
  2. A person commits the crime of unlawfully sheltering or aiding a runaway child if the person:
    1. knowingly shelters a runaway child;
    2. intentionally aids, helps, or assists a child to become a runaway child; or
    3. knowingly takes, entices, or harbors a runaway child, with the intent of committing a criminal act involving the child or with the intent of enticing or forcing the child to commit a criminal act.
  3. Exempt from the prohibitions of this section are:
    1. a shelter, or the directors, agents, or employees of a shelter, designated by the Commissioner for Children and Families pursuant to 33 V.S.A. § 5304 , provided that the requirements of 33 V.S.A. § 5303(b) are satisfied; and
    2. a person who has taken the child into custody pursuant to 33 V.S.A § 5251 or 5301.
  4. It is a defense to a prosecution under this section that the defendant acted reasonably and in good faith to protect the child from imminent physical, mental, or emotional harm.
  5. This section shall not apply unless the child’s parent, foster parent, guardian, legal custodian, parent lawfully exercising parent-child contact, or other person having legal or physical responsibility for the child has reported the child’s absence to a law enforcement agency.
  6. A law enforcement agency shall promptly notify the child’s parent, foster parent, guardian, legal custodian, parent lawfully exercising parent-child contact, or other person having legal or physical responsibility for the child when a runaway child has been located.
  7. A person who is convicted of a first violation of this section:
    1. with respect to sheltering a runaway child, shall, except as provided in subsection (h) of this section, be imprisoned not more than 30 days or fined not more than $500.00, or both;
    2. with respect to aiding, helping or assisting a child to become a runaway child, shall, except as provided in subsection (h) of this section, be imprisoned not more than one year or fined not more than $5,000.00, or both.
  8. A person who is convicted of a second or subsequent violation of this section, or who violates this section by transporting the child out of the State of Vermont, or who violates subdivision (b)(3) of this section, shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

HISTORY: Added 2001, No. 41 , § 2; amended 2013, No. 131 (Adj. Sess.), § 105.

History

Amendments

—2013 (Adj. Sess.). Subdiv. (c)(1): Substituted “ 33 V.S.A. § 5304 ” for “section 5512 of Title 33” following “pursuant to” and “ 33 V.S.A. § 5303(b) ” for “subsection 5512(b) of Title 33” and made minor stylistic changes.

Subdiv. (c)(2): Substituted “33 V.S.A § 5251 or 5301” for “section 5510 of Title 33” at the end.

Chapter 27. Reports of Physical Abuse of Children

§§ 1351-1356. Repealed. 1981, No. 207 (Adj. Sess.), § 3, eff. April 25, 1982.

History

Former §§ 1351-1356. Former sections 1351-1356 related to the protection of children who had physical injury inflicted upon them.

Prior to repeal the following sections were added or amended by the acts cited.

Section 1351: 1973, No. 152 (Adj. Sess.), § 2; No. 237 (Adj. Sess.), § 1.

Section 1352: 1973, No. 237 (Adj. Sess.), § 2; 1975, No. 200 (Adj. Sess.), § 1.

Section 1353: 1973, No. 152 (Adj. Sess.), § 3; No. 237 (Adj. Sess.), § 3; 1975, No. 200 (Adj. Sess.), § 2.

Section 1354: 1973, No. 237 (Adj. Sess.), § 4; 1975, No. 200 (Adj. Sess.), § 3.

Section 1355: 1973, No. 237 (Adj. Sess.), § 5.

Section 1356: 1975, No. 200 (Adj. Sess.), § 4.

For similar provisions see § 33 V.S.A. § 4911 et seq.

Chapter 28. Abuse, Neglect, and Exploitation of Vulnerable Adults

§ 1375. Definitions.

As used in this chapter:

  1. “Bodily injury” means physical pain, illness, or any impairment of physical condition.
  2. “Caregiver” means:
    1. a person, agency, facility, or other organization with responsibility for providing subsistence, health, or other care to a vulnerable adult, who has assumed the responsibility voluntarily, by contract, or by an order of the court; or
    2. a person providing care, including health care, custodial care, personal care, mental health services, rehabilitative services, or any other kind of care that is required because of another’s age or disability.
  3. “Lewd and lascivious conduct” means any lewd or lascivious act upon or with the body, or any part or member thereof, of a vulnerable adult, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the person or the vulnerable adult.
  4. “Neglect” means intentional or reckless failure or omission by a caregiver to:
      1. provide care or arrange for goods, services, or living conditions necessary to maintain the health or safety of a vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, unless the caregiver is acting pursuant to the wishes of the vulnerable adult or his or her representative, or an advanced directive as defined in 18 V.S.A. chapter 111; or (A) (i) provide care or arrange for goods, services, or living conditions necessary to maintain the health or safety of a vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, unless the caregiver is acting pursuant to the wishes of the vulnerable adult or his or her representative, or an advanced directive as defined in 18 V.S.A. chapter 111; or
      2. make a reasonable effort, in accordance with the authority granted the caregiver, to protect a vulnerable adult from abuse, neglect, or exploitation by others.
    1. Neglect may be repeated conduct or a single incident that has resulted in or could be expected to result in physical or psychological harm, as a result of subdivisions (A)(i) or (ii) of this subdivision (4).
  5. “Serious bodily injury” shall have the same meaning as in subdivision 1021(2) of this title.
  6. “Sexual act” means conduct between persons consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any intrusion, however slight, by any part of a person’s body or any object into the genital or anal opening of another.
  7. “Sexual activity” means a sexual act, other than appropriate health care or personal hygiene, or lewd and lascivious conduct.
  8. “Vulnerable adult” means any person 18 years of age or older who:
    1. is a resident of a facility required to be licensed under 33 V.S.A. chapter 71;
    2. is a resident of a psychiatric hospital or a psychiatric unit of a hospital;
    3. has been receiving personal care and services from an agency certified by the Vermont Department of Disabilities, Aging and Independent Living or from a person or organization that offers, provides, or arranges for personal care; or
    4. regardless of residence or whether any type of service is received, is impaired due to brain damage, infirmities of aging, or a physical, mental, or developmental disability that results in some impairment of the individual’s ability to:
      1. provide for his or her own care without assistance, including the provision of food, shelter, clothing, health care, supervision, or management of finances; or
      2. protect himself or herself from abuse, neglect, or exploitation.

HISTORY: Added 2005, No. 79 , § 2; amended 2005, No. 192 (Adj. Sess.), § 7, eff. May 26, 2006.

History

References in text.

18 V.S.A. chapter 111, referred to in subdiv. (4)(A)(i), was repealed pursuant to 2005, No. 55 , § 9, effective September 1, 2005.

Amendments

—2005 (Adj. Sess.). Subdiv. (5): Substituted “shall have the same meaning as in subdivision 1021(2) of this title” for “means bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health or substantial disfigurement”.

§ 1376. Abuse.

  1. A person who engages in conduct with an intent or reckless disregard that the conduct is likely to cause unnecessary harm, unnecessary pain, or unnecessary suffering to a vulnerable adult shall be imprisoned not more than one year or fined not more than $1,000.00, or both.
  2. A person who commits an assault, as defined in section 1023 of this title, with actual or constructive knowledge that the victim is a vulnerable adult, shall be imprisoned for not more than two years or fined not more than $2,000.00, or both.
  3. A person who commits an aggravated assault as defined in subdivision 1024(a)(1) or (2) of this title with actual or constructive knowledge that the victim is a vulnerable adult shall be imprisoned not more than 20 years or fined not more than $10,000.00, or both.

HISTORY: Added 2005, No. 79 , § 2.

§ 1377. Abuse by unlawful restraint and unlawful confinement.

  1. Except as provided in subsection (b) of this section, no person shall knowingly or recklessly:
    1. cause or threaten to cause unnecessary or unlawful confinement or unnecessary or unlawful restraint of a vulnerable adult; or
    2. administer or threaten to administer a drug, a substance, or electroconvulsive therapy to a vulnerable adult.
  2. This section shall not apply if the confinement, restraint, administration, or threat is:
    1. part of a legitimate and lawful medical or therapeutic treatment; or
    2. lawful and reasonably necessary to protect the safety of the vulnerable adult or others, provided that less intrusive alternatives have been attempted if doing so would be reasonable under the circumstances.
  3. A person who violates this section shall:
    1. be imprisoned not more than two years or fined not more than $10,000.00, or both.
    2. if the violation causes bodily injury, be imprisoned not more than three years or fined not more than $10,000.00, or both.
    3. if the violation causes serious bodily injury, be imprisoned not more than 15 years or fined not more than $10,000.00, or both.

HISTORY: Added 2005, No. 79 , § 2.

§ 1378. Neglect.

  1. A caregiver who intentionally or recklessly neglects a vulnerable adult shall be imprisoned not more than 18 months or fined not more than $10,000.00, or both.
  2. A caregiver who violates subsection (a) of this section, and as a result of such neglect, serious bodily injury occurs to the vulnerable adult, shall be imprisoned not more than 15 years or fined not more than $10,000.00, or both.

HISTORY: Added 2005, No. 79 , § 2.

§ 1379. Sexual abuse.

  1. A person who volunteers for or is paid by a caregiving facility or program shall not engage in any sexual activity with a vulnerable adult. It shall be an affirmative defense to a prosecution under this subsection that the sexual activity was consensual between the vulnerable adult and a caregiver who was hired, supervised, and directed by the vulnerable adult. A person who violates this subsection shall be imprisoned for not more than two years or fined not more than $10,000.00, or both.
  2. No person, whether or not the person has actual knowledge of the victim’s vulnerable status, shall engage in sexual activity with a vulnerable adult if:
    1. the vulnerable adult does not consent to the sexual activity; or
    2. the person knows or should know that the vulnerable adult is incapable of resisting, declining, or consenting to the sexual activity due to his or her specific vulnerability or due to fear of retribution or hardship.
  3. A person who violates subsection (b) of this section shall be:
    1. imprisoned for not more than five years or fined not more than $10,000.00, or both, if the sexual activity involves lewd and lascivious conduct;
    2. imprisoned for not more than 20 years or fined not more than $10,000.00, or both, if the sexual activity involves a sexual act.
  4. A caregiver who violates subsection (b) of this section shall be:
    1. imprisoned for not more than seven years or fined not more than $10,000.00, or both, if the sexual activity involves lewd and lascivious conduct.
    2. imprisoned for not more than 25 years or fined not more than $10,000.00, or both, if the sexual activity involves a sexual act.

HISTORY: Added 2005, No. 79 , § 2.

ANNOTATIONS

Sentencing.

Upon examination of the statutes for sexual assault and sexual assault of a vulnerable adult, it could not be concluded that the arguably irrational disparity in punishments between them with respect to sexual assault demonstrated a clear legislative intent to allow cumulative punishments under the circumstances of defendant’s case, where he had engaged in one incident with the victim. State v. Breed, 2015 VT 43, 198 Vt. 574, 117 A.3d 829, 2015 Vt. LEXIS 27 (2015).

§ 1380. Financial exploitation.

  1. No person shall willfully use, withhold, transfer, or dispose of funds or property of a vulnerable adult, without or in excess of legal authority, for wrongful profit or advantage. No person shall willfully acquire possession or control of or an interest in funds or property of a vulnerable adult through the use of undue influence, harassment, duress, or fraud.
  2. A person who violates subsection (a) of this section, and exploits money, funds, or property of no more than $500.00 in value, shall be imprisoned not more than 18 months or fined not more than $10,000.00, or both.
  3. A person who violates subsection (a) of this section, and exploits money, funds, or property in excess of $500.00 in value, shall be imprisoned not more than 10 years or fined not more than $10,000.00, or both.

HISTORY: Added 2005, No. 79 , § 2.

ANNOTATIONS

Evidence.

Trial court properly denied defendant’s motion for a judgment of acquittal of exploiting a vulnerable adult, as there was sufficient evidence, including witness testimony about the power of attorney defendant held for his mother and the power of attorney document itself, to create a question for the jury as to whether the power of attorney was validly executed. State v. Davis, 2018 VT 33, 207 Vt. 346, 186 A.3d 1088, 2018 Vt. LEXIS 33 (2018).

Jury instructions.

In a prosecution for exploitation of a vulnerable adult, the trial court’s instruction was undoubtedly circular; in effect, the trial court instructed jurors that they could find that defendant acted without legal authority if they found that he did not have legal authority to act. Reversal was not required, however, because the issue was clearly framed for the jury; the jurors could find that defendant was his mother’s attorney-in-fact, and had legal authority, if they found the power of attorney’s conditions had been met. State v. Davis, 2018 VT 33, 207 Vt. 346, 186 A.3d 1088, 2018 Vt. LEXIS 33 (2018).

Relation to other provisions.

Trial court erred when it equated the finding that defendant’s mother was a “vulnerable adult” for purposes of conviction with incompetence for purposes of testimony at sentencing, and therefore admitted a statement by the mother’s guardian instead of allowing the mother to testify. The error did not constitute an abuse of discretion in sentencing, however, because the trial court did not rely on the guardian’s statement in its final sentencing determination, and the sentence was well below the maximum allowed. State v. Davis, 2018 VT 33, 207 Vt. 346, 186 A.3d 1088, 2018 Vt. LEXIS 33 (2018).

Age-related impairment in a person’s ability to, for example, manage his or her own finances does not foreclose the possibility that the person may still be capable of expressing himself or herself regarding a matter upon which he or she is called to testify. Thus, a person may be found to be a “vulnerable adult” and the victim of a charge of exploiting a vulnerable adult, but still competent to testify according to the Vermont Rules of Evidence and for the purposes of sentencing consideration. State v. Davis, 2018 VT 33, 207 Vt. 346, 186 A.3d 1088, 2018 Vt. LEXIS 33 (2018).

§ 1381. Exploitation of services.

Any person who willfully forces or compels a vulnerable adult against his or her will to perform services for the profit or advantage of another shall be imprisoned not more than two years or fined not more than $10,000.00, or both.

HISTORY: Added 2005, No. 79 , § 2.

§ 1382. Deferred sentence.

Notwithstanding the limitation of subsection 7041(a) of this title, a court may, on the motion of a party or on its own motion, with or without the consent of the State’s Attorney, defer sentencing for a misdemeanor violation of this chapter and place the defendant on probation upon such terms and conditions as it may require.

HISTORY: Added 2005, No. 79 , § 2.

§ 1383. Adult Abuse Registry.

A person who is convicted of a crime under this chapter shall be placed on the Adult Abuse Registry. A deferred sentence is considered a conviction for purposes of the Adult Abuse Registry.

HISTORY: Added 2005, No. 79 , § 2.

§ 1384. Civil action; recovery by Attorney General.

  1. The Attorney General may bring an action for damages on behalf of the State against a person or caregiver who, with reckless disregard or with knowledge, violates section 1376 (abuse of a vulnerable adult), 1377 (abuse by unlawful restraint or confinement), 1378 (neglect of a vulnerable adult), 1380 (financial exploitation), or 1381 (exploitation of services) of this title, in addition to any other remedies provided by law, not to exceed the following:
    1. $5,000.00 if no bodily injury results;
    2. $10,000.00 if bodily injury results;
    3. $20,000.00 if serious bodily injury results; and
    4. $50,000.00 if death results.
  2. In a civil action brought under this section, the defendant shall have a right to a jury trial.
  3. A good faith report of abuse, neglect, exploitation, or suspicion thereof pursuant to 33 V.S.A. § 6902 or federal law shall not alone be sufficient evidence that a person acted in reckless disregard for purposes of subsection (a) of this section.

HISTORY: Added 2011, No. 141 (Adj. Sess.), § 1.

§ 1385. Civil investigation.

    1. If the Attorney General has reason to believe a person or caregiver has violated section 1376, 1377, 1378, 1380, or 1381 of this title or an administrative rule adopted pursuant to those sections, he or she may: (a) (1) If the Attorney General has reason to believe a person or caregiver has violated section 1376, 1377, 1378, 1380, or 1381 of this title or an administrative rule adopted pursuant to those sections, he or she may:
      1. examine or cause to be examined any books, records, papers, memoranda, and physical objects of whatever nature bearing upon each alleged violation;
      2. demand written responses under oath to questions bearing upon each alleged violation;
      3. require the attendance of such person or of any other person having knowledge on the premises in the county where such person resides or has a place of business or in Washington County if such person is a nonresident or has no place of business within the State; and
      4. take testimony and require proof material for his or her information and administer oaths or take acknowledgment in respect of any book, record, paper, or memorandum.
    2. The Attorney General shall serve notice of the time, place, and cause of such examination or attendance or notice of the cause of the demand for written responses at least ten days prior to the date of such examination, personally or by certified mail, upon such person at his or her principal place of business or, if such place is not known, to his or her last known address. Any book, record, paper, memorandum, or other information produced by any person pursuant to this section shall not, unless otherwise ordered by a court of this State for good cause shown, be disclosed to any person other than the authorized agent or representative of the Attorney General or another law enforcement officer engaged in legitimate law enforcement activities unless with the consent of the person producing the same. This subsection shall not apply to any criminal investigation or prosecution.
  1. A person upon whom a notice is served pursuant to this section shall comply with the terms thereof unless otherwise provided by the court order. Any person who, with intent to avoid, evade, or prevent compliance, in whole or in part, with any civil investigation under this section, removes from any place, conceals, withholds, or destroys, mutilates, alters, or by any other means falsifies any documentary material in the possession, custody, or control of any person subject of any such notice or mistakes or conceals any information shall be subject to a civil fine of not more than $5,000.00.
  2. If a person fails to comply with a notice served pursuant to subsection (b) of this section or if satisfactory copying or reproduction of any such material cannot be done and such person refuses to surrender such material, the Attorney General may file a petition with the Civil Division of the Superior Court for enforcement of this section. Whenever any petition is filed under this section, the court shall have jurisdiction to hear and determine the matter presented and to enter such orders as may be required to effectuate the provisions of this section. Failure to comply with an order issued pursuant to this section shall be punished as contempt.

HISTORY: Added 2011, No. 141 (Adj. Sess.), § 2.

§ 1386. Employment agreements.

In accordance with 21 V.S.A. § 306 , it is the policy of the State of Vermont that no confidential employment separation agreement shall inhibit the disclosure to prospective employers and responsible licensing entities of factual information about a prospective employee’s background that would lead a reasonable person to conclude that the prospective employee has engaged in conduct jeopardizing the safety of a vulnerable adult or minor.

HISTORY: Added 2018, No. 5 (Sp. Sess.), § 1, eff. June 19, 2018.

Chapter 29. Conspiracy

§§ 1401-1403. Repealed. 1985, No. 183 (Adj. Sess.), § 9.

History

Former §§ 1401-1403. Former § 1401, relating to conspiracy to commit certain crimes, was derived from V.S. 1947, § 8237; 1947, No. 202 , § 8391; P.L. § 8371; G.L. § 6795; P.S. § 5878; V.S. § 5052; R.L. § 4236 and 1864, No. 2 , § 1 and was amended by 1971, No. 199 (Adj. Sess.), § 15 and 1981, No. 223 (Adj. Sess.), § 23.

Former § 1402, relating to attempts to commit crimes, was derived from V.S. 1947, § 8238, P.L. § 8372; G.L. § 6796; 1908, No. 170 ; P.S. § 5879; V.S. § 5053; R.L. § 4237 and 1864, No. 2 , § 2 and was amended by 1971, No. 199 (Adj. Sess.), § 15 and 1981, No. 223 (Adj. Sess.), § 23.

Former § 1403, relating to accessories deemed principals, was derived from V.S. 1947, § 8239; 1947, No. l202, § 8393; P.L. § 8373; G.L. § 6797; P.S. § 5880; V.S. § 5054; R.L. § 4238; 1864, No. 2 , § 3.

§ 1404. Conspiracy.

  1. A person is guilty of conspiracy if, with the purpose that an offense listed in subsection (c) of this section be committed, that person agrees with one or more persons to commit or cause the commission of that offense, and at least two of the co-conspirators are persons who are neither law enforcement officials acting in official capacity nor persons acting in cooperation with a law enforcement official.
  2. No person shall be convicted of conspiracy unless a substantial overt act in furtherance of the conspiracy is alleged and proved to have been done by the defendant or by a co-conspirator, other than a law enforcement official acting in an official capacity or a person acting in cooperation with a law enforcement official, and subsequent to the defendant’s entrance into the conspiracy. Speech alone may not constitute an overt act.
  3. This section applies only to a conspiracy to commit or cause the commission of one or more of the following offenses:
    1. murder in the first or second degree;
    2. arson under sections 501-504 and 506 of this title;
    3. sexual exploitation of children under sections 2822, 2823, and 2824 of this title;
    4. receiving stolen property under sections 2561-2564 of this title; or
    5. an offense involving the sale, delivery, manufacture, or cultivation of a regulated drug or an offense under:
      1. 18 V.S.A. § 4230(c) , relating to trafficking in cannabis;
      2. 18 V.S.A. § 4231(c) , relating to trafficking in cocaine;
      3. 18 V.S.A. § 4233(c) , relating to trafficking in heroin;
      4. 18 V.S.A. § 4234(b)(3) , relating to unlawful selling or dispensing of a depressant, stimulant, or narcotic drug, other than fentanyl, heroin, or cocaine;
      5. 18 V.S.A. § 4234a(c) , relating to trafficking in methamphetamine; or
      6. 18 V.S.A. § 4233a(b) , relating to trafficking in fentanyl.

HISTORY: Added 1985, No. 183 (Adj. Sess.), § 1; amended 1989, No. 100 , § 14; 2003, No. 54 , § 2; 2011, No. 121 (Adj. Sess.), § 2, eff. May 9, 2012; 2013, No. 34 , § 8; 2017, No. 62 , § 6.

History

Revision note

—2020. In subdiv. (c)(5)(A), substituted “cannabis” for “marijuana” in accordance with 2019, No. 164 (Adj. Sess.), § 32 and 2019, No. 167 (Adj. Sess.), § 26.

In subsec. (a), substituted “subsection (c) of this section” for “subsection (c)” to conform reference to V.S.A. style.

Amendments

—2017. Subdiv. (c)(5)(D): Inserted “fentanyl,” preceding “heroin”; and deleted “or” at the end.

Subdiv. (c)(5)(E): Added “; or”.

Subdiv. (c)(5)(F): Added.

—2013. Subsec. (c): Deleted “7822” preceding “2822” and inserted “2823” thereafter in subdiv. (3), and made minor stylistic changes throughout the subsec.

—2011 (Adj. Sess.). Subdiv. (c)(5): Deleted “section 4237, subdivision 4231(c)(1), or subsection 4233(c) or 4234a(c) of Title 18” and added subdivs. (A) through (E).

—2003. Substituted “this title” for “Title 13” in subdivs. (c)(2)—(c)(4), and added “subdivision 4231(c)(1), or subsections 4233(c) or 4234a(c)” after “section 4237” in subdiv. (c)(5).

—1989. Subdiv. (c)(5): Substituted “the sale, delivery, manufacture or cultivation of a regulated drug or an offense under section 4237” for “regulated drugs under subsections 4224(g) and (h)” following “involving”.

ANNOTATIONS

Bail.

When defendant was charged with one count of conspiracy and three counts of knowingly and unlawfully dispensing cocaine by selling crack cocaine, his $100,000 bail was not excessive under the bail statute given the seriousness of the offenses, the weight of the evidence, and defendant’s limited ties to Vermont. State v. Peterson, 186 Vt. 655, 980 A.2d 811 (2009).

Cited.

Cited in State v. Preseault, 163 Vt. 39, 652 A.2d 1001 (1994); In re DLC Corp., 167 Vt. 544, 712 A.2d 389, 1998 Vt. LEXIS 140 (1998); State v. Maduro, 174 Vt. 302, 816 A.2d 432, 2002 Vt. LEXIS 313 (2002).

§ 1405. Testimony of co-conspirator.

No person shall be convicted of conspiracy upon the testimony of a co-conspirator, unsupported by corroborating evidence.

HISTORY: Added 1985, No. 183 (Adj. Sess.), § 2.

CROSS REFERENCES

Admissibility of statements of co-conspirators, see Rule 801(d)(2), Vermont Rules of Evidence.

§ 1406. Defense.

It is a defense to a prosecution under this chapter that the defendant renounced his or her criminal purpose by:

  1. conduct designed to prevent the commission of the crime agreed upon; or
  2. giving timely notice to a law enforcement official of the conspiracy and of the defendant’s part in it; or
  3. making a timely, positive statement to one or more of the other parties to the agreement that the defendant will not participate in the crime.

HISTORY: Added 1985, No. 183 (Adj. Sess.), § 3.

ANNOTATIONS

Renunciation not shown.

Defendant’s statements did not fall within the renunciation statute because, even by the most generous interpretation, they evidenced a mere change in plans. They did not tend to show that defendant no longer wanted her husband killed, nor did they show that defendant no longer planned to participate in the crime. State v. Wetter, 2011 VT 111, 190 Vt. 476, 35 A.3d 962, 2011 Vt. LEXIS 108 (2011).

§ 1407. Jurisdiction.

This chapter applies if:

  1. the defendant while in this State conspires with another in this State; or
  2. the defendant while in this State conspires with another who is outside this State; or
  3. the defendant while outside of this State conspires with another who is in this State; or
  4. the defendant while outside of this State conspires with another outside of this State and an overt act in furtherance of the conspiracy is committed within this State by any conspirator.

HISTORY: Added 1985, No. 183 (Adj. Sess.), § 4.

§ 1408. Venue.

A conspiracy may be prosecuted in the county or territorial unit in which any conspirator entered the conspiracy or in which an overt act was done in furtherance of the conspiracy. A court with jurisdiction over a conspiracy under this section also is a proper court for prosecution of any offense committed in furtherance of that conspiracy.

HISTORY: Added 1985, No. 183 (Adj. Sess.), § 5.

§ 1409. Penalties.

The penalty for conspiracy is the same as that authorized for the crime that is the object of the conspiracy. A sentence imposed under this section shall be concurrent with any sentence imposed for an offense which was an object of the conspiracy.

HISTORY: Added 1985, No. 183 (Adj. Sess.), § 6; amended 2011, No. 121 (Adj. Sess.), § 3, eff. May 9, 2012.

History

Amendments

—2011 (Adj. Sess.). Deleted “except that no term of imprisonment shall exceed five years, and no fine shall exceed $10,000.00” from the end of the first sentence.

Chapter 31. Discrimination

§§ 1451-1453. Repealed. 1987, No. 74, § 2(a).

History

Former §§ 1451-1453. Former § 1451, relating to public accommodations, was derived from 1957, No. 109 , § 1. Prior to repeal, former section 1451 was amended by 1973, No. 142 (Adj. Sess.); 1977, No. 36 , § 1; and 1981, No. 1 .

Former § 1452, relating to real estate; exception, was added by 1967, No. 92 , § 2.

Former § 1453, relating to penalties, was derived from 1957, No. 109 , § 2 and amended by 1967, No. 92 , § 1.

For present provisions relating to discrimination against persons in matters relating to public accommodations, rental of housing and sale or possession of real estate generally, see 9 V.S.A. § 4501 et seq.

§ 1454. Statement of purpose.

The Legislature finds and declares that it is the right of every person to enjoy the public peace and that sense of security and tranquility afforded by the protection of the law, and that wrongful activities motivated by hatred toward particular classes or groups of persons invade that protection. It is not the intent of this chapter to interfere with the exercise of rights protected by the constitutions of this State or the United States and the Legislature recognizes the constitutional rights of every citizen to harbor and express beliefs on any subject and to associate with others who share similar beliefs.

HISTORY: Added 1989, No. 172 (Adj. Sess.), § 1, eff. May 12, 1990.

History

Revision note—

Substituted “this chapter” for “this act” in the second sentence to conform reference to V.S.A. style.

Law Reviews —

For note, “An analysis of the Constitutionality of the Vermont Hate Motivated Crimes Statute in Light of the United States Supreme Court’s Decisions in R.A.V. v. City of St. Paul and Wisconsin v. Mitchell ,” see 18 Vt. L. Rev. 771 (1994).

§ 1455. Hate-motivated crimes.

  1. A person who commits, causes to be committed, or attempts to commit any crime and whose conduct is motivated, in whole or in part, by the victim’s actual or perceived protected category shall be subject to the following penalties:
    1. If the maximum penalty for the underlying crime is one year or less, the penalty for a violation of this section shall be imprisonment for not more than two years or a fine of not more than $2,000.00, or both.
    2. If the maximum penalty for the underlying crime is more than one year but less than five years, the penalty for a violation of this section shall be imprisonment for not more than five years or a fine of not more than $10,000.00, or both.
    3. If the maximum penalty for the underlying crime is five years or more, the penalty for the underlying crime shall apply; however, the court shall consider the motivation of the defendant as a factor in sentencing.
  2. The victim’s actual or perceived protected category or categories need not be the predominant reason or the sole reason for the defendant’s conduct.
  3. As used in this section, “protected category” includes race, color, religion, national origin, sex, ancestry, age, service in the U.S. Armed Forces or the National Guard, disability as defined by 21 V.S.A. § 495d(5) , sexual orientation, gender identity, and perceived membership in any such group.

HISTORY: Added 1989, No. 172 (Adj. Sess.), § 2, eff. May 12, 1990; amended 1999, No. 56 , § 4; 2013, No. 96 (Adj. Sess.), § 53; 2021, No. 34 , § 1, eff. May 18, 2021.

History

Revision note—

Substituted “ 21 V.S.A. § 495d(5) ” for “ 21 V.S.A. § 495(d)(7) -(11)” in the introductory paragraph to correct an error in the reference.

Amendments

—2021. Designated the existing provision as subsec. (a) and, in the intro. para. of subsec. (a), inserted “, in whole or in part” following “motivated” and substituted “protected category” for “race, color, religion, national origin, sex, ancestry, age, service in the U.S. Armed Forces, disability as defined by 21 V.S.A. § 495d(5) , sexual orientation, or gender identity”; and added subsecs. (b) and (c).

—2013 (Adj. Sess.). Substituted “U.S. Armed Forces” for “armed forces of the United States” following “service in the” and “disability” for “handicap” preceding “as defined”.

—1999. Inserted a hyphen in the catchline following “Hate” and in the introductory sentence, substituted “ 21 V.S.A. § 495d(5) ” for “ 21 V.S.A. § 495d(7)(11) ” and inserted “or gender identity” following “orientation”.

ANNOTATIONS

Constitutionality.

This section does not treat similarly situated victims differently; it protects victims and society from crimes that are motivated by hate, whether this hate is directed at minority or majority members of a class, and does not violate federal or state equal protection guarantees. State v. Ladue, 160 Vt. 630, 631 A.2d 236, 1993 Vt. LEXIS 68 (1993) (mem.).

Law Reviews —

For note, “An analysis of the Constitutionality of the Vermont Hate Motivated Crimes Statute in Light of the United States Supreme Court’s Decisions in R.A.V. v. City of St. Paul and Wisconsin v. Mitchell ,” see 18 Vt. L. Rev. 771 (1994).

§ 1456. Burning of cross or other religious symbol.

Any person who intentionally sets fire to, or burns, causes to be burned, or aids or procures the burning of a cross or a religious symbol, with the intention of terrorizing or harassing a particular person or persons, shall be subject to a term of imprisonment of not more than two years or a fine of not more than $5,000.00, or both.

HISTORY: Added 1989, No. 172 (Adj. Sess.), § 3, eff. May 12, 1990; amended 2021, No. 34 , § 2, eff. May 18, 2021.

History

Amendments

—2021. Deleted “and maliciously” following “intentionally”.

§ 1457. Civil liability and enforcement.

Independent of any criminal prosecution or the result thereof, any person suffering damage, loss, or injury as a result of conduct prohibited by section 1455 or 1456 of this title may bring an action for injunctive relief, compensatory and punitive damages, costs and reasonable attorney’s fees, and other appropriate relief against any person who engaged in such conduct.

HISTORY: Added 1989, No. 172 (Adj. Sess.), § 4, eff. May 12, 1990; amended 1999, No. 56 , § 1.

History

Amendments

—1999. Inserted “against any person who engaged in such conduct” at the end of the section.

ANNOTATIONS

Constitutionality.

There was no merit to an argument that any civil application of the hate crimes statute was unconstitutional. Rather than imposing a “criminal sanction,” the hate crimes statute’s relief is equitable in nature and provides protection for persons and property through injunctive relief; it does not necessarily expose a defendant to incarceration or require a heightened burden of proof. Shahi v. Madden, 2010 VT 56, 188 Vt. 142, 5 A.3d 869, 2010 Vt. LEXIS 52 (2010).

Chapter 33. Injunctions Against Hate-Motivated Crimes

§ 1458. Definitions.

For purposes of this chapter only:

  1. “Complainant” means a person who has suffered damage as a result of a hate-motivated crime.
  2. “Damage” includes destruction or defacement of personal or real property, personal injury, or the receipt of threats of violence. “Threats of violence” means verbal, electronic, or written communication, or course of conduct, or a combination thereof, that causes reasonable fear of injury to the complainant or the complainant’s property.
  3. A “hate-motivated crime” occurs whenever a person engages in conduct prohibited by chapter 31 of this title or section 1063 of this title that causes damage to the person at whom the conduct was directed.
  4. “Hate-motivated crime injunction” or “order” means an injunction or other order issued under this chapter.
  5. “Plaintiff” means the Attorney General or a complainant.
  6. “Protected category” includes race, color, religion, national origin, sex, ancestry, age, service in the U.S. Armed Forces or the National Guard, disability as defined by 21 V.S.A. § 495d(5) , sexual orientation, gender identity, and perceived membership in any such group.

HISTORY: Added 1999, No. 56 , § 3; amended 2013, No. 96 (Adj. Sess.), § 54; 2021, No. 34 , § 3, eff. May 18, 2021.

History

Amendments

—2021. Subdiv. (6): Inserted “or the National Guard”.

—2013 (Adj. Sess.). Subdiv. (6): substituted “U.S. Armed Forces” for “armed forces of the United States” following “service in the”, “disability” for “handicap” preceding “as defined by”, and made a minor stylistic change.

§ 1459. Commencement of action and hearing.

  1. The Superior Court shall have jurisdiction over proceedings under this chapter. The Vermont Rules of Civil Procedure and the Vermont Rules of Evidence shall apply.
  2. Proceedings under this chapter may be commenced in the county in which the complainant or the defendant resides, or in the county in which the incident occurred.
  3. A plaintiff may seek a hate-motivated crime injunction by filing a complaint under this chapter.
  4. A preliminary hearing upon the complaint shall be scheduled as soon as reasonably possible in consideration of the safety of the complainant.

HISTORY: Added 1999, No. 56 , § 3.

ANNOTATIONS

Jurisdiction.

Because there was no judgment on plaintiffs’ hate-motivated crimes injunction request during the 2006 trial, there was no judgment to amend. The trial court had jurisdiction to adjudicate a prayer for injunctive relief newly brought and did not abuse its discretion in doing so. Shahi v. Madden, 2010 VT 56, 188 Vt. 142, 5 A.3d 869, 2010 Vt. LEXIS 52 (2010).

§ 1460. Juvenile defendants.

  1. The general public shall be excluded from hearings held in the Civil Division of the Superior Court under this chapter where the defendant is under the age of 16. Only the parties, their counsel, the complainant, witnesses, and other persons accompanying a party for the party’s assistance, and such other persons as the court finds to have a proper interest in the case, or in the work of the court, may be admitted by the court. In such a case, there shall be no publicity given by any person to any proceedings under the authority of this chapter except with the consent of the defendant and his or her parent or guardian. The records in such a case shall be subject to the confidentiality provision of 33 V.S.A. § 5117 . Upon its own motion or the motion of a party, the court may open the hearing for good cause shown, in consideration of relevant factors, including the likelihood that a court would make a determination that charges against the defendant with respect to the underlying crime on which the hate-motivated crime injunction is based should be heard in the Criminal Division of the Superior Court pursuant to 33 V.S.A. chapter 52.
  2. If the defendant is 16 to 17 years of age, the hearing shall be open to the general public. However, upon its own motion or the motion of a party, the court may close the hearing for good cause shown. If the court orders the hearing to be closed, the confidentiality provisions of subsection (a) of this section shall apply.
  3. If a hate-motivated crime injunction is issued under this section, the court shall give notice of the contents of the order to the complainant, and to any school personnel or other appropriate persons the court finds to have a proper interest in the case and whose knowledge of the contents of the order is reasonably necessary to ensure the defendant’s compliance with the order, regardless of whether the proceedings were open or closed to the general public.

HISTORY: Added 1999, No. 56 , § 3; amended 2009, No. 154 , § 238; 2013, No. 131 (Adj. Sess.), § 106.

History

Revision note

—2013. In subsec. (a), added “the Civil Division of the” before “Superior Court” in accordance with 2009, No. 154 (Adj. Sess.), § 236.

—2009. Substituted “chapter 52 of Title 33” for “chapter 55 of Title 33” for purposes of clarity in light of the enactment of 2007, No. 185 (Adj. Sess.), which repealed chapter 55 of Title 33, effective January 1, 2009.

Amendments

—2013 (Adj. Sess.). Subsec. (a): Substituted “ 33 V.S.A. § 5117 ” for “ 33 V.S.A. § 5536 ” following “confidentiality provision of”, inserted “the” preceding “Criminal Division”, and made a minor stylistic change.

—2009 (Adj. Sess.) Subsec. (a): Substituted “criminal division of the superior court” for “district court”.

§ 1461. Relief.

  1. If the court finds by a preponderance of the evidence that the defendant has committed a hate-motivated crime against the complainant, or if the parties stipulate to an order, the court shall make such preliminary and final orders as it deems necessary to protect the complainant and the complainant’s property and other appropriate persons who are in need of protection and such persons’ property, including any of the following orders:
    1. an order to refrain from committing any crime against the complainant;
    2. an order restricting the defendant’s ability to contact the complainant;
    3. an order prohibiting the defendant from coming within a fixed distance of the complainant, the complainant’s residence or other designated locations where the complainant is likely to spend time;
    4. an order to refrain from committing a hate-motivated crime against the complainant, other appropriate persons who are in need of protection and members of any protected category.
  2. A preliminary order issued under this chapter shall remain in effect until a final order is issued or for a fixed period that the court deems appropriate, but in no event more than 120 days without a further order from the court. A final order shall be issued for a fixed period, but in no event more than two years without a further order from the court. The court may extend any order for such time as it deems necessary to protect the complainant, other appropriate persons who are in need of protection and members of any protected category. It shall not be necessary for the court to find that the defendant has committed a hate-motivated crime during the pendency of an order to extend the terms of the order; however, the court shall find that there is a reasonable basis for continued protection. The court may modify its order at any subsequent time upon motion by either party and a showing of good cause.
  3. Every preliminary or final order issued under this section shall bear the following language: VIOLATION OF THIS ORDER MAY BE PROSECUTED AS A CRIME PUNISHABLE BY A TERM OF IMPRISONMENT OR A FINE, OR BOTH, OR MAY BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY A TERM OF IMPRISONMENT OR A FINE, OR BOTH.

HISTORY: Added 1999, No. 56 , § 3.

History

Former § 1461, relating to creation of commission, membership and compensation, was derived from 1967, No. 92 , §§ 3, 10 and was previously repealed by 1987, No. 234 (Adj. Sess.), § 1.

ANNOTATIONS

Jurisdiction.

Because there was no judgment on plaintiffs’ hate-motivated crimes injunction request during the 2006 trial, there was no judgment to amend. The trial court had jurisdiction to adjudicate a prayer for injunctive relief newly brought and did not abuse its discretion in doing so. Shahi v. Madden, 2010 VT 56, 188 Vt. 142, 5 A.3d 869, 2010 Vt. LEXIS 52 (2010).

Particular cases.

Plaintiffs had not shown the nexus between the harmful acts and prohibited discriminatory animus required for the issuance of a hate crimes injunction. The one reference to any racial bias in all of the testimony at the hearing came when one witness admitted to referring to one plaintiff as a “towel head,” but denied that defendant had ever done so; while there was testimony at a 2006 jury trial regarding defendant’s discriminatory bias toward plaintiffs, such evidence was not submitted in the present proceeding and was not relied upon by the trial court in granting the injunction. Shahi v. Madden, 2010 VT 56, 188 Vt. 142, 5 A.3d 869, 2010 Vt. LEXIS 52 (2010).

Possible imposition of criminal sanctions for violation of a hate-motivated crime injunction or the branding of a defendant as a “hate criminal” without a jury determination did not mandate striking down the hate crimes law or voiding a hate crimes injunction. Violation of any court-ordered injunction can expose a defendant to fines or incarceration for contempt, and such a possibility does not transform the injunction itself into a criminal sanction; likewise, the claimed necessity of a jury trial was without merit in this context, where the relief sought was equitable. Shahi v. Madden, 2010 VT 56, 188 Vt. 142, 5 A.3d 869, 2010 Vt. LEXIS 52 (2010).

In issuing a hate crimes injunction in 2009, the trial court erred in relying on the language of an earlier appellate decision in the case to support the finding of a hate-motivated crime. The issue of a hate-motivated crime was not adjudged in the 2006 trial and was neither appealed nor decided by the court; the court’s dictum could not take the place of the physical or testimonial evidence required for the imposition of an injunction. Shahi v. Madden, 2010 VT 56, 188 Vt. 142, 5 A.3d 869, 2010 Vt. LEXIS 52 (2010).

Requirements.

There must be a showing of necessity for an injunction to issue under the hate crimes statute, though nothing in the statute imposes any specific period of limitation between the wrongful conduct and the injunction. The requirement is simply that the court find protection is reasonably necessary when assessing the present circumstances of the complainant; an inference can be made that the two-year limitation on the injunction present in the statute provides an outer limit to the time period in which an injunction must be sought. Shahi v. Madden, 2010 VT 56, 188 Vt. 142, 5 A.3d 869, 2010 Vt. LEXIS 52 (2010).

In order to impose a hate crimes injunction, a trial court need find by a preponderance of the evidence: (1) defendant engaged, caused, or attempted to engage in wrongful conduct toward complainant; which caused the complainant damage, loss, or injury, including fear; (2) defendant was maliciously motivated by complainant’s protected characteristics; and (3) injunctive relief is reasonably necessary to protect the complainant, the complainant’s property, and other appropriate persons—including other members of the complainant’s protected class—and their property. The “wrongful conduct” so proscribed need not result in criminal prosecution, as any civil relief can be sought independent of the State’s actions; however, the complainant must still prove that it was more likely than not that the defendant committed a crime which both caused the complainant damages and was motivated by discriminatory animus. Shahi v. Madden, 2010 VT 56, 188 Vt. 142, 5 A.3d 869, 2010 Vt. LEXIS 52 (2010).

§ 1462. Service.

Hate-motivated crime complaints, notices of hearing, and orders shall be served as soon as reasonably possible and in a manner that takes into consideration the safety of the complainant.

HISTORY: Added 1999, No. 56 , § 3.

History

Former § 1462, relating to powers of commission, was derived from 1967, No. 92 , § 4 and was repealed by 1987, No. 234 (Adj. Sess.), § 1.

§ 1463. Procedure.

  1. Notwithstanding any law to the contrary, proceedings commenced under this chapter shall be in addition to any other available civil or criminal remedies.
  2. The Supreme Court shall establish procedures consistent with this chapter that provide prompt access to relief.
  3. Police departments, sheriffs’ departments, and the State Police shall establish procedures for filing orders issued under this chapter and for making their personnel aware of the existence and contents of such orders.
  4. The court that issues an order under this chapter shall transmit a copy of the order to the Department of Public Safety relief from abuse database.

HISTORY: Added 1999, No. 56 , § 3.

§ 1464. Enforcement.

  1. Law enforcement officers are authorized to enforce orders issued under this chapter. Enforcement may include making an arrest in accordance with the provisions of Rule 3 of the Vermont Rules of Criminal Procedure.
  2. A law enforcement officer may rely upon a copy of any order issued under this chapter which has been provided to the law enforcement officer by any source.

HISTORY: Added 1999, No. 56 , § 3.

§ 1465. Penalties.

  1. Provided that notice was properly served, a person who violates a hate-motivated crime injunction issued under this chapter shall be imprisoned not more than one year or fined not more than $2,000.00, or both.
  2. A person who is convicted of a second or subsequent offense under this section shall be imprisoned not more than three years or fined not more than $10,000.00, or both.
  3. Nothing in this section shall be construed to diminish the inherent authority of the courts to enforce their lawful orders through contempt proceedings.
  4. Prosecution under this section shall not bar prosecution for any other crime, including any crime that may have been committed at the time of the violation of the hate-motivated crime injunction.

HISTORY: Added 1999, No. 56 , § 3.

§ 1466. Civil penalties.

The Attorney General may seek the imposition of a civil penalty of not more than $5,000.00, plus costs and reasonable attorney’s fees for each violation of section 1455 or 1456 of this title, including violations of any injunction issued pursuant to this chapter.

HISTORY: Added 1999, No. 56 , § 3.

Chapter 33. Commission on Human Rights

§§ 1461-1467. Repealed. 1987, No. 234 (Adj. Sess.), § 3.

History

Former §§ 1461-1467. Former § 1461, relating to creation of commission, membership and compensation, was derived from 1967, No. 92 , §§ 3, 10.

Former § 1462, relating to powers of commission, was derived from 1967, No. 92 , § 4.

Former § 1463, relating to duties of commission, was derived from 1967, No. 92 , § 5.

Former § 1464, relating to orders, issuance and form of commission, was derived from 1967, No. 92 , § 6.

Former § 1465, relating to effect of compliance with terms of commission, was derived from 1967, No. 92 , § 7.

Former § 1466, relating to enforcement of orders of commission, was derived from 1967, No. 92 , § 8 and amended by 1971, No. 185 (Adj. Sess.), § 236, eff. March. 29, 1972.

Former § 1467, relating to judicial review, was derived from 1967, No. 92 , § 9 and amended by 1971, No. 185 (Adj. Sess.), § 236, eff. March 29, 1972.

For present provisions relating to the human rights commission, see 9 V.S.A. § 4551 et seq.

Chapter 35. Escape

CROSS REFERENCES

Notice to victim of defendant’s escape, see § 5305 of this title.

Prosecution and punishment for murder committed during escape or attempt to escape from custody, see § 2311 of this title.

§ 1501. Escape and attempts to escape.

  1. A person who, while in lawful custody:
    1. escapes or attempts to escape from any correctional facility or a local lockup shall be imprisoned for not more than 10 years or fined not more than $5,000.00, or both; or
    2. escapes or attempts to escape from an officer, if the person was in custody as a result of a felony, shall be imprisoned for not more than 10 years or fined not more than $5,000.00, or both; or if the person was in custody as a result of a misdemeanor, shall be imprisoned for not more than two years or fined not more than $1,000.00, or both.
    1. A person shall not, while in lawful custody: (b) (1) A person shall not, while in lawful custody:
      1. fail to return from work release to the correctional facility at the specified time, or visits other than the specified place, as required by the order issued in accordance with 28 V.S.A. § 753 ;
      2. fail to return from furlough to the correctional facility at the specified time, or visits other than the specified place, as required by the order issued in accordance with 28 V.S.A. § 808(a)(1) -(5) or § 723;
      3. escape or attempt to escape while on release from a correctional facility to do work in the service of such facility or of the Department of Corrections in accordance with 28 V.S.A. § 758 ; or
      4. elope or attempt to elope from the Vermont Psychiatric Care Hospital or a participating hospital, when confined by court order pursuant to chapter 157 of this title, or when transferred there pursuant to 28 V.S.A. § 703 and while still serving a sentence.
    2. A person who violates this subsection shall be imprisoned for not more than five years or fined not more than $1,000.00, or both.
    3. If the person is on furlough status pursuant to 28 V.S.A. § 723 , 808(e), or 808a, a violation of this subdivision (1) of this subsection requires a showing that the person intended to escape from furlough.
  2. All sentences imposed under subsection (a) of this section shall be consecutive to any term or sentence being served at the time of the offense.
  3. As used in this section:
    1. “No refusal system” means a system of hospitals and intensive residential recovery facilities under contract with the Department of Mental Health that provides high intensity services, in which the facilities shall admit any individual for care if the individual meets the eligibility criteria established by the Commissioner in contract.
    2. “Participating hospital” means a hospital under contract with the Department of Mental Health to participate in the no refusal system.
    3. [Repealed.]

HISTORY: Amended 1967, No. 317 (Adj. Sess.), eff. March 22, 1968; 1971, No. 199 (Adj. Sess.), § 15; 1973, No. 109 , § 5; 1973, No. 206 (Adj. Sess.), § 1, eff. 30 days from April 3, 1974; 2011, No. 79 (Adj. Sess.), § 14, eff. April 4, 2012; 2015, No. 5 , § 1, eff. April 9, 2015; 2019, No. 77 , § 10; 2019, No. 148 (Adj. Sess.), § 18, eff. Jan. 1, 2021.

History

Source.

V.S. 1947, § 8532. 1947, No. 202 , § 8686. P.L. § 8670. G.L. § 7065. 1917, No. 254 , § 6878. 1915, No. 212 . P.S. §§ 5921, 6067. V.S. §§ 5094, 5253. R.L. §§ 4276, 4413. 1880, No. 4 , § 1. G.S. 115, §§ 11, 12. G.S. 123, §§ 21, 22, 26. R.S. 97, §§ 11, 12. R.S. 104, §§ 16, 17, 21. 1821, p. 4. 1810, p. 128. 1808, pp. 112, 113. R. 1797, p. 178, § 6. R. 1787, p. 132.

Amendments

—2019 (Adj. Sess.). Subdiv. (b)(1)(B): Inserted “or § 723” at the end of the subdiv.

Subdiv. (b)(3): Rewrote the subdiv.

—2019. Subdiv. (b)(1)(B): Substituted “ 28 V.S.A. § 808 (a)(1) -(5)” for “ 28 V.S.A. § 808 , 808a, 808b, or 808c” following “in accordance with”.

Subdiv. (b)(3): Added.

—2015. Rewrote subsec. (b) and repealed subdiv. (d)(3).

—2011 (Adj. Sess.). Subdiv. (b)(4): Substituted “Vermont State Hospital, or its successor in interest or a participating hospital” for “Vermont state hospital”, “chapter 157 of this title” for “chapter 157 of Title 13 or chapter 199 of Title 18”, and “ 28 V.S.A. § 703 ” for “section 703 of Title 28”.

Subsec. (d): Added.

—1973 (Adj. Sess.). Subdiv. (b)(4): Substituted chapter “199” for “119”.

—1973. Section amended generally.

—1971 (Adj. Sess.). Subsec. (b): Omitted phrase “in the state prison”.

—1967 (Adj. Sess.). Original section rephrased and designated subsec. (a), subsec. (b) added.

Effective date of amendments—

2019 (Adj. Sess.). 2019, No. 148 (Adj. Sess.), § 25(c) provides that the amendments to this section by 2019, No. 148 (Adj. Sess.), § 18 shall take effect on January 1, 2021.

ANNOTATIONS

Generally.

Because statistics confirmed that escape from custody in violation of 13 V.S.A. § 1501(a)(1) presented a serious potential risk of injury to another, that offense qualified as a predicate under the residual clause, 18 U.S.C.S. § 924(e)(2)(b)(ii), of the Armed Career Criminal Act, 18 U.S.C.S. § 924(e). United States v. Baker, 665 F.3d 51, 2012 U.S. App. LEXIS 627 (2d Cir. 2012).

Because the U.S. Supreme Court’s intervening decision in Chambers might have rendered the district court’s reliance upon defendant’s escape conviction as an Armed Career Criminal Act predicate erroneous, and because the district court had not had the occasion to consider whether the crimes underlying two of defendant’s three sexual assault convictions arose from conduct committed on different occasions, the case was appropriately remanded. United States v. Daye, 571 F.3d 225, 2009 U.S. App. LEXIS 15275 (2d Cir. 2009), overruled as stated in, United States v. Manning, 2016 U.S. Dist. LEXIS 183890 (W.D. Ark. June 28, 2016), overruled as stated in, United States v. Nard, 2016 U.S. Dist. LEXIS 194208 (W.D. Ark. July 29, 2016), overruled as stated in, United States v. Noble, 2017 U.S. Dist. LEXIS 218994 (W.D. Ark. Jan. 4, 2017).

Breaking jail by a person lawfully imprisoned therein for any cause whatsoever was a felony at common law and by statute. State v. Shaw, 73 Vt. 149, 50 A. 863, 1901 Vt. LEXIS 146 (1901).

Arrest for felony.

The facts known to the officer at the time defendant’s arrest was made were sufficient, for purposes of the felony escape statute, to support an arrest for the commission of a felony, despite the officer’s erroneous labelling of the charges as misdemeanors. The facts set forth in the charging affidavit were obtained from a sworn statement of defendant’s girlfriend, who stated that defendant placed a loaded pistol to her head and threatened to shoot her. This fact, in conjunction with other information, provided sufficient probable cause to support an arrest for aggravated domestic assault under 13 V.S.A. § 1043(a)(2) , a felony. State v. Powell, 167 Vt. 294, 707 A.2d 272, 1997 Vt. LEXIS 276 (1997) (mem.).

Custody.

There is no escape absent lawful custody. Lawful custody does not arise until a defendant is brought under a police officer’s control through physical restraint, or submits to the officer’s authority. A suspect who resists arrest, for example, by fleeing when a police officer tells him to “freeze” is not in “custody” until his liberty is restrained. State v. Turgeon, 165 Vt. 28, 676 A.2d 339, 1996 Vt. LEXIS 35 (1996).

Defenses.

Neither federal nor state concepts of double jeopardy reach disciplinary action imposed upon inmates for breach of confinement in the course of the administration of a correctional institution; thus, such action constitutes no constitutional barrier to prosecution for crime of escape. State v. Lebo, 129 Vt. 449, 282 A.2d 804, 1971 Vt. LEXIS 289 (1971).

In prosecution for escape from prison farm, evidence offered by defendant relating to his administrative segregation and loss of good time credit following his capture and return was properly excluded as against claim it should have been received on double jeopardy issue, because such administrative action is not covered by double jeopardy concepts and there could thus be no double jeopardy. State v. Lebo, 129 Vt. 449, 282 A.2d 804, 1971 Vt. LEXIS 289 (1971).

Prisoner confined under sentence for escape from jail in which he had been confined following arrest, who sought, by post-conviction relief, invalidation of his conviction and release on the ground that he was illegally detained at the time he escaped, could not successfully claim that alleged defects in his original apprehension and continued confinement gave rise to a right to escape prior to adjudication of such issues where several new charges were lodged against him prior to his escape, a lawful basis for his restraint for such charges was established, and he was at all times fully informed of his rights, he had counsel, was free to test his confinement by habeas corpus and plead guilty to escape charge. In re Provencher, 127 Vt. 558, 255 A.2d 180, 1969 Vt. LEXIS 276 (1969).

Desire for liberty, constraining lawfully confined jail inmate to flee, was not, no matter how strong, a defense to escape from jail charge. In re Provencher, 127 Vt. 558, 255 A.2d 180, 1969 Vt. LEXIS 276 (1969).

It was no defense that respondent left jail under orders to work at a certain place, and that, being without a guard, he left that place; for the law had dominion over him as well after he left the jail as before. State v. Wright, 81 Vt. 281, 69 A. 761, 1908 Vt. LEXIS 143 (1908).

Nor is it any defense that respondent’s desire for liberty constrained him to flee, for, however strong that desire, it was still his duty to submit himself to the restraints of the law. State v. Wright, 81 Vt. 281, 69 A. 761, 1908 Vt. LEXIS 143 (1908).

Evidence.

Even though the term “order” was not technically used to describe the document governing defendant’s furlough, it was executed in accordance with 28 V.S.A. § 808 by the Commissioner’s authority; thus, there was sufficient evidence proving that the conditional reentry form and weekly schedules were an order for purposes of the escape statute. State v. Stanley, 2007 VT 64, 182 Vt. 565, 933 A.2d 184, 2007 Vt. LEXIS 167 (2007) (mem.).

State met its burden of demonstrating substantial and admissible evidence as to elements of furlough escape, and therefore defendant’s motion to dismiss was properly denied. State v. Parker, 170 Vt. 571, 744 A.2d 434, 1999 Vt. LEXIS 407 (1999) (mem.).

Where prisoner’s furlough record sheet, a log showing who had been released and on what terms, was admitted through desk officer at correctional center, who testified record was regularly prepared and that a number of checks were built into the preparation, and prisoner, tried for escape from work release, failed to adduce any proof throwing suspicion on genuineness of the record, it was not error to admit the record to show prisoner was released pursuant to valid work release order and that he violated that order. State v. Burclaff, 138 Vt. 461, 418 A.2d 38, 1980 Vt. LEXIS 1266 (1980).

Extradition expenses.

The expenses incurred by the Department of Corrections for the extradition of defendant, who pled guilty to escape, did not constitute nontaxable costs of prosecution, as defendant had purposely attempted to evade the law, resulting in pecuniary damages suffered by the State. State v. Lewis, 167 Vt. 533, 711 A.2d 669, 1998 Vt. LEXIS 165 (1998).

The mere fact that a restitution award for extradition expenses exceeded the maximum fine allowable for escape did not make it improper, because the Legislature did not intend to limit such damages based on the dollar amount in the charge against the defendant. State v. Lewis, 167 Vt. 533, 711 A.2d 669, 1998 Vt. LEXIS 165 (1998).

Indictment and information.

Where prisoner escaped from work release, was charged with escape from furlough, and at close of state’s evidence moved for acquittal on ground of variance between the proof, which if anything showed escape from work release, and the information, refusal of motion, and allowing state to amend information to charge escape from work release, was not error. State v. Burclaff, 138 Vt. 461, 418 A.2d 38, 1980 Vt. LEXIS 1266 (1980).

Motion to dismiss complaint on ground that information charged escape from state prison while evidence established escape from prison farm was properly denied where farm was maintained at, an integral part of, and under the supervision of the warden of, the state prison, so that his escape from the prison farm was in fact an escape from prison, and where complaint identified respondent, alleged time and place of escape with sufficient certainty to enable him to prepare a defense, and sufficiently stated facts essential to afford protection against a second conviction for the same offense. State v. Lebo, 129 Vt. 449, 282 A.2d 804, 1971 Vt. LEXIS 289 (1971).

Information stating that accused escaped from the Rutland county jail while in lawful custody was not ambiguous and properly set forth the nature and cause of the accusation and left no doubt that it was under subdiv. (b) of this section. State v. Provencher, 128 Vt. 586, 270 A.2d 147, 1970 Vt. LEXIS 279 (1970).

Prior law.

Breaking from a village lock-up was an offense under V.S. § 5094 which relates to breaking of “a jail or other place in which a person is confined by authority of the state.” State v. Dohney, 72 Vt. 260, 47 A. 785, 1900 Vt. LEXIS 129 (1900).

It was an offense under the statute against breaking open a jail (Comp. Stat., chap. CVI, § 11, p. 555) for a prisoner confined alone in jail to break it open in order to escape. State v. Fletcher, 32 Vt. 427, 1859 Vt. LEXIS 119 (1859).

Statute of limitations.

Crime of escape under this section is a continuing offense and prosecution is not barred by statute of limitations. State v. Burns, 151 Vt. 621, 564 A.2d 593, 1989 Vt. LEXIS 139 (1989).

Cited.

Cited in In re Kasper, 145 Vt. 117, 483 A.2d 608, 1984 Vt. LEXIS 553 (1984); Conway v. Cumming, 161 Vt. 113, 636 A.2d 735, 1993 Vt. LEXIS 115 (1993).

§ 1502. Unlawfully aiding prisoners.

  1. A person shall not:
    1. rescue or attempt to rescue a prisoner from a place in which a person is confined by authority of the State, or from an officer conveying one to any such place of confinement; or
    2. counsel or assist in breaking open or attempting to break open any such place of confinement; or
    3. directly or indirectly aid a prisoner in escaping or attempting to escape from any such place of confinement, or from an officer conveying one thereto, or from any officer or person who has the lawful custody of such prisoner; or
    4. other than a prisoner, directly or indirectly break open or attempt to break open any such place of confinement.
  2. A person who violates a provision of this section shall be imprisoned not more than five years or fined not more than $500.00.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15.

History

Source.

V.S. 1947, § 8529. P.L. § 8667. G.L. § 7061. 1917, No. 254 , § 6874. P.S. § 5921. V.S. § 5094. R.L. § 4276. G.S. 115, §§ 11, 12. G.S. 123, §§ 21, 22. R.S. 97, §§ 11, 12. R.S. 104, §§ 16, 17. 1821, p. 4. 1810, p. 128. 1808, p. 112. R. 1797, p. 178, § 6. R. 1787, p. 132.

Amendments

—1971 (Adj. Sess.). Omitted phrase “in the state prison” and omitted references to specific places of confinement.

Revision note—

In subsec. (a)(1) phrase “the state prison, house of correction or from a jail or other place in which a person is confined . . .” was changed to “a place in which a person is confined . . .” to conform phrase to omission of specific references to prisons, etc., by 1971, No. 199 (Adj. Sess.), § 15.

§ 1503. Giving prisoner tools for escape; aiding escaped prisoner.

A person who gives to a prisoner in any such place of confinement, or conveys therein, a tool, instrument, or weapon with intent to enable a prisoner to escape, whether such escape is effected or not; or who, not being a parent, child, wife, husband, brother, or sister of such prisoner, harbors, conceals, aids or comforts a prisoner who has escaped from any such place of confinement, knowing thereof, shall be punished as provided in section 1502 of this title.

HISTORY: Amended 1973, No. 201 (Adj. Sess.), § 1.

History

Source.

V.S. 1947, § 8530. P.L. § 8668. G.L. § 7062. P.S. § 5922. V.S. § 5095. R.L. § 4277. G.S. 123, §§ 23, 24. R.S. 104, §§ 18, 19. 1810, p. 128. 1808, p. 112.

Amendments

—1973 (Adj. Sess.). Added the word “husband”.

§ 1504. Repealed. 2019, No. 77, § 12, eff. June 19, 2019.

History

Source.

V.S. 1947, § 8528. P.L. § 8666. G.L. § 7063. P.S. § 5923. V.S. § 5096. R.L. § 4278.

Former § 1504, relating to place of confinement construed, was derived from V.S. 1947, § 8528. P.L. § 8666. G.L. § 7063. P.S. § 5923. V.S. § 5096. R.L. § 4278.

§ 1505. Repealed. 1995, No. 147 (Adj. Sess.), § 6.

History

Former § 1505. Former § 1505, relating to the penalty for aiding an escape from Weeks School, was derived from V.S. 1947, § 8531; P.L. § 8669; G.L. § 7064; 1915, No. 211 ; P.S. § 5924; V.S. § 5097; R.L. § 4279; 1865, No. 1 , § 7; and amended by 1971, No. 199 (Adj. Sess.), § 15, and 1981, No. 223 (Adj. Sess.), § 23.

§ 1506. Officer aiding or voluntarily allowing escape.

An officer or person employed in keeping, taking care of, or guarding the State prison or the prisoners therein, who aids or voluntarily suffers the escape of a prisoner, shall be imprisoned not more than 20 years. Jailers and officers, other than those employed in keeping, taking care of, or guarding the State prison or prisoners therein, who voluntarily suffer a prisoner in their custody, upon conviction or upon a criminal charge, to escape, shall be imprisoned not more than five years or fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8533. 1947, No. 202 , § 8687. P.L. § 8671. G.L. § 7066. P.S. § 5925. V.S. § 5098. R.L. § 4280. G.S. 115, § 14. G.S. 123, § 19. R.S. 104, § 14. 1808, p. 111.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

§ 1507. Repealed. 1977, No. 233 (Adj. Sess.), § 5a, eff. April 17, 1978.

History

Former § 1507. Former § 1507, relating to negligent escape of prisoner from officer, was derived from V.S. 1947, § 8534, P.L. § 8672, G.L. § 7067, P.S. § 5926, V.S. § 5099, R.L. § 4281, G.S. 115, § 15 and R.S. 97, § 15.

Chapter 37. Explosives

§ 1601. Willful and malicious injuries caused by explosives.

A person who willfully and maliciously, by the explosion of gunpowder or any other explosive substance, unlawfully destroys or injures a dwelling house, office, shop, or other building, or a ship, vessel, or a dam or reservoir for storing water, shall be imprisoned not more than 20 years or fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8393. P.L. § 8530. G.L. § 6946. P.S. § 5832. 1900, No. 100 , § 1.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

CROSS REFERENCES

Explosives and fireworks, regulation of, see 20 V.S.A. ch. 177.

§ 1602. Attempts.

A person who willfully and maliciously throws into, against, or upon, or puts, places, or explodes, or causes to be exploded, in, upon, or near a dwelling house, office, shop, building, ship, vessel, or any dam or reservoir for storing water, gunpowder or other explosive substance, or a bombshell, torpedo, or other instrument filled or loaded with an explosive substance, with intent unlawfully to destroy or injure such dwelling house, office, shop, building, ship, vessel, or any dam or reservoir for storing water, or any person or property therein, shall be imprisoned not more than 10 years or fined not more than $500.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8394. P.L. § 8531. G.L. § 6947. P.S. § 5833. 1900, No. 100 , § 2.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

§ 1603. Definitions.

For the purposes of this chapter:

  1. “Destructive device” means any:
    1. explosive, incendiary, or poison gas bomb; or
    2. explosive, incendiary, or poison gas grenade; or
    3. explosive, incendiary, or poison gas rocket having a propellant charge of more than four ounces; or
    4. explosive, incendiary, or poison gas missile having an explosive or incendiary charge of more than one-quarter ounce; or
    5. explosive, incendiary, or poison gas mine; or
    6. device that consists of or includes a breakable container including a flammable liquid or compound, and a wick composed of any material that, when ignited, is capable of igniting the flammable liquid or compound, and can be carried or thrown by one individual acting alone; or
    7. device similar to those devices enumerated in subdivisions (1) and (1)(A)-(E) of this section.

      A destructive device does not include a firearm or ammunition therefor.

  2. “Explosive” means dynamite, or any explosive compound of which nitroglycerin forms a part, or fulminate in bulk or dry condition, or blasting caps, or detonating fuses, or blasting powder, or any other similar explosive.  The term does not include a firearm or ammunition therefor or any components of ammunition for a firearm including primers, smokeless powder, or black gunpowder.
  3. “Hoax device” means any device so designed, assembled, fabricated, or manufactured as to convey the physical appearance of an explosive or incendiary bomb or the physical appearance of any of the devices enumerated in subdivisions (1)(A)-(F) of this section that is lacking an explosive or incendiary charge.

HISTORY: Added 1971, No. 107 , § 1, eff. 30 days from April 22, 1971; amended 1975, No. 222 (Adj. Sess.), § 3, eff. 30 days from April 7, 1976.

History

Revision note

—2009. In subdiv. (1)(G), substituted “subdivisions (1) and (1)(A)-(E)” for “paragraphs (1), (A)-(E)” for purposes of clarity and to conform reference to V.S.A. style.

Revision note—. In subdiv. (3) substituted “subdivisions (1)(A)-(F)” for “subdivisions (A)-(F)” for purposes of clarity and to conform reference to V.S.A. style.

Amendments

—1975 (Adj. Sess.). Subdiv. (3): Added.

ANNOTATIONS

Destructive device.

Except for a “firearm or ammunition therefor” (paragraph (1)), any explosive bomb is a “destructive device” as defined in paragraph (1) of this section and used in 13 V.S.A. § 1604 (possession of destructive device), including a pipebomb made of smokeless gunpowder. State v. Quinn, 165 Vt. 136, 675 A.2d 1336, 1996 Vt. LEXIS 23 (1996).

§ 1604. Possession of destructive devices.

A person who manufactures, possesses, stores, or transports a destructive device or a hoax device shall be imprisoned for not more than 10 years or fined not more than $5,000.00, or both.

HISTORY: Added 1971, No. 107 , § 2, eff. 30 days from April 22, 1971; amended 1975, No. 222 (Adj. Sess.), § 2, eff. 30 days from April 7, 1976.

History

Amendments

—1975 (Adj. Sess.). Inserted reference to a hoax device.

ANNOTATIONS

Pipebomb made of smokeless gunpowder.

Except for a “firearm or ammunition therefor” ( 13 V.S.A. § 1603(1) ), any explosive bomb is a “destructive device” as defined in 13 V.S.A. § 1603(1) and used in this section, including a pipebomb made of smokeless gunpowder. State v. Quinn, 165 Vt. 136, 675 A.2d 1336, 1996 Vt. LEXIS 23 (1996).

§ 1605. Injuries caused by destructive devices.

A person who purposely and maliciously uses a destructive device to injure a person or to damage or destroy the property of another shall be imprisoned for not more than 20 years or fined not more than $10,000.00, or both.

HISTORY: Added 1971, No. 107 , § 3, eff. 30 days from April 22, 1971.

§ 1606. Possession and use of explosives.

A person who possesses, purchases, stores, uses, or transports an explosive without a license as provided in 20 V.S.A. chapter 177, subchapter 2, division 2 shall be imprisoned for not more than five years or fined not more than $1,000.00, or both.

HISTORY: Added 1971, No. 107 , § 4, eff. 30 days from April 22, 1971.

History

Revision note

—2009. Substituted “division 2 of subchapter 2 of chapter 177 of Title 20” for “chapter 177, subchapter 2, division 2 of Title 20” to conform reference to V.S.A. style.

§ 1607. Sale of explosives.

A person who gives, transfers, or sells an explosive to another who does not hold a license issued under 20 V.S.A. chapter 177, subchapter 2, division 2 shall be imprisoned for not more than five years or fined not more than $1,000.00, or both.

HISTORY: Added 1971, No. 107 , § 5, eff. 30 days from April 22, 1971.

History

Revision note

—2009. Substituted “division 2 of subchapter 2 of chapter 177 of Title 20” for “chapter 177, subchapter 2, division 2 of Title 20” to conform reference to V.S.A. style.

§ 1608. Injuries caused by explosives.

A person who purposely and maliciously uses an explosive to injure a person or to damage or destroy the property of another shall be imprisoned for not more than 20 years or fined not more than $10,000.00, or both.

HISTORY: Added 1971, No. 107 , § 6, eff. 30 days from April 22, 1971.

§ 1609. Record of sale.

  1. A person may not give, transfer, or sell an explosive to another unless the purchaser exhibits a valid license issued under 20 V.S.A. chapter 177, subchapter 2, division 2.
  2. A person who gives, transfers, or sells an explosive to another shall record the name and address of the purchaser, the license number of the purchaser, the date of sale, the type and quantity of explosives sold, the serial or lot number of the explosives, if any, and the purpose for which the explosive is to be used on forms provided by the Commissioner of Public Safety.  The purchaser holding a license shall keep a record of each purchase made and the disposition of the explosives, giving a full report without delay but in no event later than 24 hours after discovery of the loss or theft of any of such explosives to the Commissioner of Public Safety. The records shall be kept by the seller and the purchaser for a period of two years and shall be open to inspection by any law enforcement officer.
  3. A person who violates a provision of this section shall be imprisoned for not more than five years or fined not more than $1,000.00, or both.

HISTORY: Added 1971, No. 107 , § 7, eff. 30 days from April 22, 1971.

History

Revision note

—2009. Substituted “division 2 of subchapter 2 of chapter 177 of Title 20” for “chapter 177, subchapter 2, division 2 of Title 20” to conform reference to V.S.A. style.

§ 1610. Purchase in contiguous states.

Any person holding a valid license under 20 V.S.A. chapter 177, subchapter 2, division 2 may purchase explosives in any state contiguous to this State and transport them into this State, provided that he or she furnishes a record of each purchase to the Commissioner of Public Safety within 15 days of the transportation of the explosives into this State, and that he or she comply with both the laws applicable to the purchases in the contiguous state, and the pertinent statutes of the U.S. government.

HISTORY: Added 1971, No. 107 , § 8, eff. 30 days from April 22, 1971.

History

Revision note

—2009. Substituted “division 2 of subchapter 2 of chapter 177 of Title 20” for “chapter 177, subchapter 2, division 2 of Title 20” to conform reference to V.S.A. style.

§ 1611. Exemptions.

  1. Nothing contained in this chapter shall apply to the U.S. Armed Forces, the duly authorized militia of the State, the fire or police departments of this State, or to the State or any subdivision thereof.
  2. Nothing contained in this chapter shall apply to destructive devices or explosives while being transported upon vessels, motor vehicles, or railroad cars in conformity with the regulations adopted by the Interstate Commerce Commission.
  3. The provisions of section 1604 of this title do not apply to a person who holds a valid license issued under Title 18 of the United States Code, chapter 44, to manufacture, possess, use, store, or transport a destructive device provided he or she is complying with the terms of the license.

HISTORY: Added 1971, No. 107 , § 9, eff. 30 days from April 22, 1971.

§ 1612. Placing a hoax device.

A person who willfully and maliciously puts, places, or installs a hoax device in any building, house, facility of public transport, vehicular conveyance, ship, boat, aircraft, dam or reservoir for storing water shall be imprisoned for not more than 10 years or fined not more than $5,000.00, or both.

HISTORY: Added 1975, No. 222 (Adj. Sess.), § 4, eff. 30 days from April 7, 1976.

Chapter 39. Extortion and Threats

§ 1701. Definition and penalty.

A person who maliciously threatens to accuse another of a crime or offense, or with an injury to his or her person or property, with intent to extort money or other pecuniary advantage, or with intent to compel the person so threatened to do an act against his or her will, shall be imprisoned not more than three years or fined not more than $500.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1973, No. 109 , § 6; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8273. 1947, No. 202 , § 8426. P.L. § 8408. G.L. § 6840. P.S. § 5735. V.S. § 4921. R.L. § 4121. G.S. 112, § 27. R.S. 94, § 20.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so so that both imprisonment and fines may be imposed.

—1973. Increased term of imprisonment.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Construction.

In construing 13 V.S.A. § 1701 , the court aims to effect legislative intent, and although penal statutes should be interpreted in a manner most favorable to the accused, they should not be interpreted so strictly as to defeat the legislative purpose in enacting the law; had the legislature intended “injury to the person” to mean only bodily injury it would have used the term bodily or physical injury. State v. Galusha, 164 Vt. 91, 665 A.2d 595, 1995 Vt. LEXIS 77 (1995).

Evidence.

In prosecution for threatening to accuse a certain man of crime of adultery with a woman named with intent to extort money, it was proper to allow state to show by a third person that, about same time, respondent accused him of that crime with same woman, and threatened him with imprisonment unless he would pay respondent $ 20. State v. Louanis, 79 Vt. 463, 65 A. 532, 1907 Vt. LEXIS 128 (1907).

Injury.

The “injury to the person” in 13 V.S.A. § 1701 , the extortion statute, includes injury other than physical harm, and applied to a defendant who allegedly delivered a letter to a female minor, in which he threatened to disclose a sexually explicit videotape of the defendant and the minor engaged in sexual acts to her parents and custodian unless she agreed to continue their relationship. State v. Galusha, 164 Vt. 91, 665 A.2d 595, 1995 Vt. LEXIS 77 (1995).

Purpose.

This section was aimed at blackmailing, and a threat of any public accusation was as much within its reason as one of a formal complaint instituting a criminal prosecution. State v. Louanis, 79 Vt. 463, 65 A. 532, 1907 Vt. LEXIS 128 (1907).

Threat.

A threat within meaning of this section is a menace of such a nature as to unsettle the mind of person on whom it is intended to operate, and to take from his acts that freedom essential to constitute voluntary consent. State v. Louanis, 79 Vt. 463, 65 A. 532, 1907 Vt. LEXIS 128 (1907).

It was proper for court to refuse to charge that threat must be such as to overcome will of an ordinarily prudent man, and to leave it to jury to say whether threat was calculated to disturb and unsettle a man’s mind and give anxiety. State v. Louanis, 79 Vt. 463, 65 A. 532, 1907 Vt. LEXIS 128 (1907).

Cited.

Cited in State v. Hackett, 141 Vt. 223, 446 A.2d 369, 1982 Vt. LEXIS 508 (1982); State v. Carroll, 147 Vt. 108, 513 A.2d 1159, 1986 Vt. LEXIS 374 (1986); State v. Ashley, 161 Vt. 65, 632 A.2d 1368, 1993 Vt. LEXIS 100 (1993).

§ 1702. CRIMINAL THREATENING

  1. A person shall not by words or conduct knowingly:
    1. threaten another person or a group of particular persons; and
    2. as a result of the threat, place the other person in reasonable apprehension of death, serious bodily injury, or sexual assault to the other person, a person in the group of particular persons, or any other person.
  2. A person who violates subsection (a) of this section shall be imprisoned not more than one year or fined not more than $1,000.00, or both.
  3. A person who violates subsection (a) of this section with the intent to prevent another person from reporting to the Department for Children and Families the suspected abuse or neglect of a child shall be imprisoned not more than two years or fined not more than $2,000.00, or both.
  4. A person who violates subsection (a) of this section by making a threat that places any person in reasonable apprehension that death, serious bodily injury, or sexual assault will occur at a public or private school; postsecondary education institution; place of worship; polling place during election activities; the Vermont State House; or any federal, State, or municipal building shall be imprisoned not more than two years or fined not more than $2,000.00, or both.
  5. A person who violates subsection (a) of this section with the intent to terrify, intimidate, or unlawfully influence a person to prevent that person from complying with State laws or rules, State court or administrative orders, or State executive orders shall be imprisoned not more than two years or fined not more than $2,000.00, or both.
  6. A person who violates subsection (a) of this section with the intent to terrify, intimidate, or unlawfully influence the conduct of a candidate for public office, a public servant, an election official, or a public employee in any decision, opinion, recommendation, vote, or other exercise of discretion taken in capacity as a candidate for public office, a public servant, an election official, or a public employee, or with the intent to retaliate against a candidate for public office, a public servant, an election official, or a public employee for any previous action taken in capacity as a candidate for public office, a public servant, an election official, or a public employee, shall be imprisoned not more than two years or fined not more than $2,000.00, or both.
  7. As used in this section:
    1. “Serious bodily injury” has the same meaning as in section 1021 of this title.
    2. “Threat” and “threaten” do not include constitutionally protected activity.
    3. “Candidate” has the same meaning as in 17 V.S.A. § 2103 .
    4. “Election official” has the same meaning as in 17 V.S.A. § 2455 .
    5. “Public employee” means a classified employee within the Legislative, Executive, or Judicial Branch of the State and any of its political subdivisions and any employee within a county or local government and any of the county’s or local government’s political subdivisions.
    6. “Public servant” has the same meaning as in 17 V.S.A. § 2103 .
    7. “Polling place” has the same meaning as described in 17 V.S.A. chapter 51, subchapter 4.
    8. “Sexual assault” has the same meaning as sexual assault as described in section 3252 of this title.
  8. Any person charged under this section who is younger than the age identified in 33 V.S.A. § 5201(d) shall be subject to a juvenile proceeding.

HISTORY: Added 2015, No. 162 (Adj. Sess.), § 6b; 2021, No. 103 (Adj. Sess.), § 1, effective May 3, 2022.

§ 1703. Domestic terrorism.

  1. As used in this section:
    1. “Domestic terrorism” means engaging in or taking a substantial step to commit a violation of the criminal laws of this State with the intent to:
      1. cause death or serious bodily injury to multiple persons; or
      2. threaten any civilian population with mass destruction, mass killings, or kidnapping.
    2. “Serious bodily injury” shall have the same meaning as in section 1021 of this title.
    3. “Substantial step” means conduct that is strongly corroborative of the actor’s intent to complete the commission of the offense.
  2. A person who willfully engages in an act of domestic terrorism shall be imprisoned for not more than 20 years or fined not more than $50,000.00, or both.
  3. It shall be an affirmative defense to a charge under this section that the actor abandoned his or her effort to commit the crime or otherwise prevented its commission under circumstances manifesting a complete and voluntary renunciation of his or her criminal purpose.

HISTORY: Added 2017, No. 135 (Adj. Sess.), § 2, eff. May 21, 2018.

Chapter 41. False Alarms and Reports

§ 1751. False alarms to agencies of public safety.

  1. A person who willfully or knowingly gives, or aids or abets in giving, by any means any false alarm of fire or other emergency to be transmitted to or within any organization, official or volunteer, for dealing with emergencies involving danger to life or property shall be imprisoned for not more than one year or fined not more than $1,000.00, or both.
  2. If bodily injury or death is sustained by any person as a result of a violation of this section, the person convicted of the violation in lieu of any penalty imposed by subsection (a) of this section shall be imprisoned for not more than five years or fined not more than $2,000.00, or both; however, this subsection shall not prevent the imposition of a greater fine or sentence against any person who is convicted of any degree of homicide, including manslaughter.

HISTORY: Added 1971, No. 169 (Adj. Sess.), § 1.

§ 1752. Tampering with facilities.

A person who willfully or knowingly tampers with, interferes with, or impairs any public fire alarm apparatus, wire, or associated equipment shall be imprisoned for not more than one year or fined not more than $1,000.00, or both.

HISTORY: Added 1971, No. 169 (Adj. Sess.), § 2.

§ 1753. False public alarms.

  1. A person who initiates or willfully circulates or transmits a report or warning of an impending bombing or other offense or catastrophe, knowing that the report or warning is false or baseless and that it is likely to cause evacuation of a building, place of assembly, or facility of public transport, or to cause public inconvenience or alarm, shall, for the first offense, be imprisoned for not more than two years or fined not more than $5,000.00, or both. For the second or subsequent offense, the person shall be imprisoned for not more than five years or fined not more than $10,000.00, or both. In addition, the court may order the person to perform community service. Any community service ordered under this section shall be supervised by the Department of Corrections.
  2. [Repealed.]

HISTORY: Added 1971, No. 169 (Adj. Sess.), § 3; amended 1997, No. 153 (Adj. Sess.), § 3; 1999, No. 113 (Adj. Sess.), § 20; 1999, No. 124 (Adj. Sess.), § 4; 2015, No. 147 (Adj. Sess.), § 11, eff. May 31, 2016.

History

Editor’s note—

The text of this section is based on the harmonization of two amendments. During the 1999 adjourned session, this section was amended twice, by Act Nos. 113 and 124, resulting in two versions of this section. In order to reflect all of the changes enacted by the legislature during the 1999 adjourned session, the text of Act Nos. 113 and 124 were merged to arrive at a single version of this section. The changes which each of the amendments made are described in amendment notes set out below.

Amendments

—2015 (Adj. Sess.). Subsec. (b): Repealed.

—1999 (Adj. Sess.). Act No. 113 designated the existing provisions of the section as subsec. (a) and added subsec. (b).

Act No. 124 inserted “or transmits” preceding “a report of warning” following “willfully circulates” in the first sentence.

—1997 (Adj. Sess.). Added “for the first offense” and substituted “two years” for “one year” and “$5,000.00” for “$1,000.00” in the first sentence, and added the second through fourth sentences.

§ 1754. False reports to law enforcement authorities.

  1. A person who knowingly gives false information to any law enforcement officer with purpose to implicate another or to deflect an investigation from the person or another person shall be imprisoned for not more than one year or fined not more than $1,000.00, or both.
  2. A person shall be imprisoned for not more than six months or fined not more than $500.00, or both, if the person:
    1. reports to law enforcement authorities an offense or other incident within their concern knowing that it did not occur; or
    2. pretends to furnish such authorities with information relating to an offense or incident when the person knows the person has no information relating to such offense or incident.

HISTORY: Added 1971, No. 169 (Adj. Sess.), § 4; amended 1981, No. 223 (Adj. Sess.), § 23; 2005, No. 149 (Adj. Sess.), § 1.

History

Amendments

—2005 (Adj. Sess.). Substituted “the person” for “he” throughout the section, and added “or to deflect an investigation from the person or another person” following “implicate another” in subsec. (a).

—1981 (Adj. Sess.). Subsec. (b): Penalty provisions were amended so that both imprisonment and fines may be imposed.

ANNOTATIONS

Double jeopardy.

Charge of impeding a public officer required proof that defendant committed the unlawful act of giving false information to a police officer implicating his wife. In effect, the impeding charge incorporated the false information charge, making false information a predicate offense to defendant’s conviction for impeding, and in such circumstances, a guilty verdict obtained on both the predicate and compounding offense violated the Double Jeopardy Clause. State v. Neisner, 2010 VT 112, 189 Vt. 160, 16 A.3d 597, 2010 Vt. LEXIS 117 (2010).

Elements.

To violate the false reports statute, an individual must give false information to a law enforcement officer to achieve his or her conscious objective of directing the investigation away from him or herself. State v. Albarelli, 2016 VT 119, 203 Vt. 551, 159 A.3d 627, 2016 Vt. LEXIS 121 (2016).

Intent to deflect an investigation away from one’s self is an essential element of the false reports statute, which the State bears the burden of proving. State v. Albarelli, 2016 VT 119, 203 Vt. 551, 159 A.3d 627, 2016 Vt. LEXIS 121 (2016).

Evidence.

With regard to a conviction of giving false information to a police officer with intent to deflect, the evidence presented reasonably and fairly supported the jury’s conclusion that defendant, by providing the police officers with his first and middle name and an incorrect birth year, intended to deflect their investigation away from himself. State v. Albarelli, 2016 VT 119, 203 Vt. 551, 159 A.3d 627, 2016 Vt. LEXIS 121 (2016).

Court refuses to hold that evidence of a defendant giving a false name alone is never sufficient to sustain a conviction under the false reports statute and, as with all other cases involving circumstantial evidence, the court must look at the record as a whole and determine if it can fairly and reasonably convince a jury of guilt. State v. Albarelli, 2016 VT 119, 203 Vt. 551, 159 A.3d 627, 2016 Vt. LEXIS 121 (2016).

When defendant was charged with felony possession of cocaine, misdemeanor possession of marijuana, and misdemeanor providing false information to an officer, it was proper to allow testimony that he had a handcuff key in his shoe. Possession of a means to escape arrest might be an indication that he had a plan to deflect investigation, a plan that included fleeing possible prosecution; furthermore, possession of the key triggered a reasonable inference that he knew his behavior of possessing illegal substances was illegal and had taken steps to avoid prosecution and punishment. State v. Delaoz, 2010 VT 65, 189 Vt. 385, 22 A.3d 388, 2010 Vt. LEXIS 67 (2010).

Trial court properly refused to give a limiting instruction that testimony regarding a handcuff key possessed by defendant was not evidence of possession of drugs or false information to a police officer. The court refused to issue such an instruction because it concluded that the evidence was relevant to the intent element present in all of the charges. State v. Delaoz, 2010 VT 65, 189 Vt. 385, 22 A.3d 388, 2010 Vt. LEXIS 67 (2010).

Intent.

Under the false reports statute, the prohibition of false speech is directly linked to a defendant’s intent to deflect a government investigation, thus preventing government waste. The court does not read the statute to criminalize all false statements to law enforcement agents, regardless of a defendant’s intent; rather, the statute prohibits false statements intended to deflect an investigation. State v. Albarelli, 2016 VT 119, 203 Vt. 551, 159 A.3d 627, 2016 Vt. LEXIS 121 (2016).

Jury instructions.

New trial on the false information count was required. Neither the charge nor the State’s trial evidence identified precisely what information the jury needed to evaluate with respect to this count, and given defendant’s multiple statements and the two distinct ways in which a violation of the statute could occur, the Court could not be certain that the jury unanimously agreed that all, or at least one, of defendant’s statements met the same statutory elements. State v. Redmond, 2020 VT 36, 212 Vt. 242, 234 A.3d 958, 2020 Vt. LEXIS 39 (2020).

Cited.

Cited in State v. Graves, 145 Vt. 271, 487 A.2d 157, 1984 Vt. LEXIS 589 (1984).

Chapter 43. Forgery and Counterfeiting

§ 1801. Forgery and counterfeiting of papers, documents, etc.

A person who wittingly, falsely, and deceitfully makes, alters, forges, or counterfeits, or wittingly, falsely, or deceitfully causes to be made, altered, forged, or counterfeited, or procures, aids, or counsels the making, altering, forging, or counterfeiting, of a writ, process, public record, or any certificate, return, or attestation of a clerk of a court, public register, notary public, justice, or other public officer, in relation to a matter wherein such certificate, return, or attestation may be received as legal proof, or a charter, deed, or any evidence or muniment of title to property, will, terminal care document, testament, bond, or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, or an order drawn on a person or corporation, or on a State, county, or town or school district treasurer, for money or other property, or an acquittance or discharge for money or other property, or an acceptance of a bill of exchange, or indorsement or assignment of a bill of exchange or promissory note, for the payment of money, or any accountable receipt for money, goods, or other property, or certificate of stock, with intent to injure, or defraud a person, shall be imprisoned not more than 10 years and fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 141 (Adj. Sess.), § 2, eff. April 8, 1982; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8344. 1947, No. 202 , § 8497. P.L. § 8484. G.L. § 6902. 1917, No. 254 , § 6720. P.S. § 5792. V.S. § 4977. 1884, No. 102 , § 1. R.L. § 4167. G.S. 114, § 1. R.S. 96, § 1. 1818, pp. 9, 18. R. 1797, p. 162, § 18. R. 1797, p. 172, § 34. 1791, p. 10. R. 1787, p. 111.

Amendments

—1981 (Adj. Sess.). Act No. 141 added reference to “terminal care document”.

Penalty provisions were amended by Act No. 223 so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Bail.

After conviction and pending review, forgery is not an offense bailable as a matter of right, within meaning of Vermont constitution, chapter II, § 32. In re Woodmansee, 127 Vt. 575, 255 A.2d 667, 1969 Vt. LEXIS 280 (1969).

Common law.

Document which was invalid on its face could not sustain charge of forgery at common law. State v. McManus, 78 Vt. 433, 62 A. 1013, 1906 Vt. LEXIS 170 (1906).

Making or altering an instrument not named in this section was a misdemeanor at common law, but was not punishable by sentence to state prison. State v. Morton, 27 Vt. 310, 1855 Vt. LEXIS 36 (1855).

Severing an endorsement from a note and leaving note entire was not a forgery within meaning of this section, but was nevertheless a misdemeanor at common law, and could be punished by fine and imprisonment. State v. McLeran, 1 Aik. 311 (Vt. Mar. 1, 1826).

Construction.

The legislature, in enacting this section, used the terms “forges or counterfeits” in a synonymous sense. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

Evidence.

It is trial court’s duty to determine whether or not a writing offered as a standard of a person’s handwriting is genuine and admissible, although it is the right and duty of the jury to judge for themselves as to the sufficiency of the proof that the writing is genuine. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

Where state’s attorney was not a witness to any of the facts introduced in prosecution for forgery, there was no indication that he could offer any evidence as to defendant’s guilt or innocence, and the state’s motives in prosecution of prior case in which it was alleged that defendant there aided and abetted the forgery by a person not the instant defendant of the same check involved in the instant case were not material to the cause, and state was not barred from bringing instant case by reason of charging, in prior case, that another person had forged the check, denial of defendant’s request to call state’s attorney or a witness regarding state’s inconsistency as to the forger was not error. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

Where prison warden saw letters purporting to be signed by defendant and sent to warden, and had communicated with defendant regarding them and acted on requests they contained, he was properly permitted to testify, in prosecution for forgery, that in his opinion the letters were in defendant’s handwriting, and they were properly received as standards. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

In an indictment against several persons for forgery upon a bank check, evidence tending to prove agreement between respondents to procure money from banks by forged paper, without reference to any particular bank, was admissible. State v. Morton, 27 Vt. 310, 1855 Vt. LEXIS 36 (1855).

Indictment.

Information and warrant alleging, in terms of this section, that accused did “forge or counterfeit” were not thereby defective by making statement of offense uncertain, as such terms, though used in the alternative, signify the same thing and act. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

Gist of crime of forgery is intent to defraud, and it was not necessary that information state the name of a particular person or entity which accused intended to defraud. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

That state may have used forged check in prior prosecution of a person for aiding and abetting the forging and cashing of the check by a person not the defendant in the instant case would not deprive state of probable cause to issue an information against defendant charging him with forging the check. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

Allegations of extrinsic facts were necessary only where operation of instrument on rights of another was not apparent from instrument itself. State v. Shelters, 51 Vt. 102, 1878 Vt. LEXIS 131 (1878).

There was no duplicity in an indictment in alleging that respondent forged and caused to be forged and aided and assisted in forging —— they being same offense under statute, and in legal contemplation the same act. State v. Shelters, 51 Vt. 102, 1878 Vt. LEXIS 131 (1878).

In an indictment for forgery instrument forged must be set forth in haec verba. State v. Morton, 27 Vt. 310, 1855 Vt. LEXIS 36 (1855).

Instruments subject to forgery.

A memorandum on back or margin of a note made at time of its execution formed part of it and was subject of forgery. State v. Donovan, 75 Vt. 308, 55 A. 611, 1903 Vt. LEXIS 134 (1903).

Writing in common form of a receipt was an acquittance within meaning of this section. State v. Shelters, 51 Vt. 102, 1878 Vt. LEXIS 131 (1878).

Forged paper must be such that, if genuine, it could injure another, and it must appear from indictment that it was legally of such a character, either from a recital or description of instrument itself, or, if that alone did not show it to be so, then by additional averment of such extrinsic facts as render it of that character. State v. Briggs, 34 Vt. 501, 1861 Vt. LEXIS 88 (1861).

In this section words “bond or writing obligatory” were used in their legal sense as meaning bonds binding some obligor to some obligee, and requiring something to be done, which, if not done, could be compensated by an action on bond. State v. Briggs, 34 Vt. 501, 1861 Vt. LEXIS 88 (1861).

Request in writing to pay money or other things upon credit of drawer, although to be carried by payee as mere servant of drawer, to drawer, or to be applied to his use was an “order” within meaning of this section. State v. Nevins, 23 Vt. 519, 1851 Vt. LEXIS 61 (1851).

Cited.

Cited in In re Kasper, 145 Vt. 117, 483 A.2d 608, 1984 Vt. LEXIS 553 (1984).

§ 1802. Uttering forged or counterfeited instrument.

A person who utters and publishes as true a forged, altered, or counterfeited record, deed, instrument, or other writing mentioned in section 1801 of this title, knowing the same to be false, altered, forged, or counterfeited, with intent to injure or defraud a person, shall be imprisoned not more than 10 years and fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8345. 1947, No. 202 , § 8498. P.L. § 8485. G.L. § 6903. P.S. § 5793. V.S. § 4978. 1884, No. 102 , § 2. R.L. § 4168. G.S. 114, § 2. R.S. 96, § 2. 1818, pp. 10, 19. R. 1797, p. 162, § 18. R. 1797, p. 172. § 34. 1791, p. 10.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Construction.

The legislature, in enacting this section, used the term “forges or counterfeits” in a synonymous sense. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

Construction with other laws.

Violation of section is not a felony for purposes of 12 U.S.C. § 588(b) . Jerome v. United States, 318 U.S. 101, 63 S. Ct. 483, 87 L. Ed. 640, 1943 U.S. LEXIS 1314 (1943).

Evidence.

Evidence that check was forged, that defendant knew the check was missing and knew purported endorser, and that defendant presented check at bank was insufficient to prove that defendant knew the check was forged and to support conviction under this section. State v. Ravenna, 151 Vt. 96, 557 A.2d 484, 1988 Vt. LEXIS 239 (1988).

Knowledge and intent.

Where state provided no evidence as to whether the defendant knew the instrument was forged, or that he intended to defraud, it failed to provide sufficient evidence to sustain conviction of uttering a forged instrument. State v. Colby, 139 Vt. 475, 431 A.2d 462, 1981 Vt. LEXIS 500 (1981).

§ 1803. Counterfeiting or altering peddler’s license.

A person who counterfeits a license to a peddler, or alters such license granted agreeably to the provisions of law, or utters and publishes as true a counterfeit or altered license, shall be imprisoned not more than ten years.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15.

History

Source.

V.S. 1947, § 8346. P.L. § 8486. G.L. § 6904. P.S. § 5794. V.S. § 4979. R.L. § 4169. G.S. 81, § 14. 1846, No. 26 , § 14.

Amendments

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

§ 1804. Counterfeiting paper money.

A person who falsely makes, alters, forges, or counterfeits, or procures to be made, altered, forged, or counterfeited, or aids or assists in making, altering, forging, or counterfeiting, a note, or imitation of, or purporting to be a note issued by the United States, used as currency, or a bank bill or promissory note, or imitation of, or purporting to be a bank bill or promissory note, issued by a banking company incorporated by the Congress of the United States or by the legislature of a state of the United States or of another country, with intent to injure or defraud a person; and a person who utters, passes, or gives in payment, or offers to pass or give in payment, or procures to be offered, passed, or given in payment, or has in his or her possession with intent to offer, pass, or give in payment, such altered, forged, counterfeited, or imitated note, bank bill, or promissory note, knowing the same to be altered, forged, counterfeited, or imitated, shall be imprisoned not more than 14 years and fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8347. 1947, No. 202 , § 8500. P.L. § 8487. G.L. § 6905. P.S. § 5795. V.S. § 4980. R.L. § 4170. 1869, No. 43 . G.S. 114, §§ 3, 4. R.S. 93, §§ 3, 4. 1818, p. 17. R. 1797, p. 171, § 33. R. 1787, p. 38.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Constitutionality.

Act of this state against counterfeiting bank notes was not void for repugnancy. State v. Randall, 2 Aik. 89 (Vt. 1827).

Construction.

The legislature, in enacting this section, used the terms “forges or counterfeits” in a synonymous sense. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

Indictment.

The uttering, passing and giving in payment a counterfeit bank bill are distinct offenses; and an indictment for uttering and passing such bill, averring knowledge of respondent that bill was counterfeit was sufficient though it did not allege that respondent uttered and passed it as a true bill. State v. Wilkins, 17 Vt. 151, 1845 Vt. LEXIS 6 (1845).

Words “bank bill” and “promissory note” were synonymous, and indictment which charged respondent with having uttered a counterfeit “bank note” was sufficient. State v. Wilkins, 17 Vt. 151, 1845 Vt. LEXIS 6 (1845).

Jurisdiction of state courts.

The offenses of counterfeiting bills of bank of the United States were cognizable by courts of the state notwithstanding the Congress of the United States has legislated on the subject and given to courts of the United States jurisdiction of same offenses. State v. Randall, 2 Aik. 89 (Vt. 1827).

§ 1805. Counterfeiting scrip.

A person who falsely makes, alters, forges, or counterfeits or procures to be made, altered, forged, or counterfeited, or aids or assists in making, altering, forging, or counterfeiting, any scrip or imitation purporting to be scrip issued, under the authorization of 11 V.S.A. chapter 5, with intent to injure or defraud, and a person who utters, passes, or gives in payment or offers to pass or give in payment or has in his or her possession with intent to offer, pass or give in payment, such altered, forged, counterfeited, or imitated scrip, knowing the same to be altered, forged, counterfeited, or imitated shall be punishable for forgery, notwithstanding any other penalty provided in 11 V.S.A. chapter 5.

History

Source.

V.S. 1947, § 8348. P.L. § 8488. 1933, No. 126 , Pt. III, § 3.

ANNOTATIONS

Construction.

The legislature, in enacting this section, used the terms “forges or counterfeits” in a synonymous sense. State v. Woodmansee, 128 Vt. 467, 266 A.2d 448, 1970 Vt. LEXIS 257 (1970).

§ 1806. Affixing false signature to obligation of corporation.

A person who, with intent to pass the same as true, fraudulently affixes to an instrument or writing purporting to be a note, draft, or other evidence of debt issued by a corporation, a fictitious or pretended signature purporting to be the signature of an officer or agent of such corporation, though no such person may ever have been an officer or agent of such corporation nor such corporation ever have existed, shall be imprisoned not more than 14 years or fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8349. 1947, No. 202 , § 8502. P.L. § 8489. G.L. § 6906. P.S. § 5796. V.S. § 4981. R.L. § 4171. G.S. 114, § 7. R.S. 96, § 7.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

§ 1807. Making or repairing tools for counterfeit money.

A person who engraves, makes, or mends, or begins to engrave, make, or mend, a plate, block, or press, or other tool, instrument, or implement, or makes or provides paper or other material adapted and designed for forging or making a false or counterfeit bank bill or promissory note, in the similitude of the bills or notes issued by the United States, or by a bank or banking company established and incorporated by the Congress of the United States, or by the legislature of this State or any of the United States or of any other country; and a person who has in his or her possession such plate or block engraved in any part, or a press or other tool, instrument, or implement, or paper or other material adapted and designed as aforesaid, with intent to use the same, or cause or permit the same to be used, in forging or making such false and counterfeit bank bills or notes, shall be imprisoned not more than 14 years and fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8350. 1947, No. 202 , § 8503. P.L. § 8490. G.L. § 6907. P.S. § 5797. V.S. § 4982. R.L. § 4172. G.S. 114, § 5. R.S. 96, § 5. 1818, p. 18. R. 1797, p 171, § 33. R. 1787, p. 38.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

§ 1808. Joining parts of several bills or instruments.

A person who fraudulently unites different parts of several bank bills or other genuine instruments, so as to produce an additional bank bill or instrument, with intent to pass all of them as genuine, shall be imprisoned not more than 14 years and fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8351. 1947, No. 202 , § 8504. P.L. § 8491. G.L. § 6908. P.S. § 5798. V.S. § 4983. R.L. § 4173. G.S. 114, § 6. R.S. 96, § 6.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

§ 1809. Counterfeiting coin.

A person who counterfeits gold or silver coin, current by law or usage in this State, or utters, passes, or gives in payment such counterfeit gold or silver coin, knowing the same to be false and counterfeit, with intent to injure or defraud a person, and a person who has in his possession false money or coin, counterfeited in the similitude of gold or silver coin, current as aforesaid, knowing the same to be false and counterfeit, with intent to utter or pass the same as true, or counsels, advises, or assists in counterfeiting, uttering, or passing such gold or silver coin, shall be imprisoned not more than 15 years and fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8352. 1947, No. 202 , § 8505. P.L. § 8492. G.L. § 6909. P.S. § 5799. V.S. § 4984. R.L. § 4174. G.S. 114, § 9. R.S. 96, § 9. 1818, p. 15. R. 1797, p. 169, § 30. 1793, p. 11. R. 1787, p. 40.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

§ 1810. Making or repairing tools for counterfeiting coin.

A person who casts, stamps, engraves, makes, or mends, or knowingly has in his or her possession, a mould, pattern, die, puncheon, engine, press, or other tool or instrument adapted and designed for coining or making counterfeit coin in the similitude of gold or silver coin, current by law or usage in this State, with intent to use or employ the same or to cause or permit the same to be used or employed in coining or making such false or counterfeit coin, shall be imprisoned not more than 15 years and fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8353. 1947, No. 202 , § 8506. P.L. § 8493. G.L. § 6910. P.S. § 5800. V.S. § 4985. R.L. § 4175. G.S. 114, § 10. R.S. 96, § 10. 1818, p. 15. R. 1797, p. 169, § 30. 1793, p. 11.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Crucible.

Having a crucible in possession for purpose of counterfeiting did not constitute an offense under this section. State v. Bowman, 6 Vt. 594, 1834 Vt. LEXIS 100 (1834).

Indictment.

Indictment for having in possession counterfeit coin need not aver that denomination of coin which was counterfeited was “current by law, or usage, in this state,” it being averred, that the coin was one of the current silver coins of the United States. State v. Griffin, 18 Vt. 198, 1846 Vt. LEXIS 24 (1846).

Mould.

This section was intended to reach every part of apparatus of coining, however much more might be necessary to make that effective; therefore, if it was shown that respondent had in his possession one half of a mould, it was sufficient, without proof that he also had the other half. State v. Griffin, 18 Vt. 198, 1846 Vt. LEXIS 24 (1846).

§ 1811. Making imitation of gold or silver.

A person who makes, mixes, or changes a metal in imitation of gold or silver, or teaches a person the art of making, mixing, or changing a metal in imitation of gold or silver, with intent that the same shall be used for coining, shall be imprisoned not more than 10 years and fined not more than $500.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8354. 1947, No. 202 , § 8507. P.L. § 8494. G.L. § 6911. P.S. § 5801. V.S. 4986. R.L. § 4176. G.S. 114, § 11. R.S. 96, § 11. 1818, p. 14. R. 1797, p. 167, § 27.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

§ 1812. Officers to make seizures.

A district judge, sheriff, deputy sheriff, high bailiff, or constable within his or her jurisdiction shall seize forged, false, or counterfeited bank bills or notes or coin and the instruments or implements made or kept for the purpose of making, forging, changing, or counterfeiting gold or silver coin, bank bills, or notes, and deliver the same as soon as may be to the State’s Attorney of such county, with the names of the persons from whom the same are taken.

HISTORY: Amended 1965, No. 194 , § 10, operative February 1, 1967; 1973, No. 249 (Adj. Sess.), § 44, eff. April 9, 1974; 2017, No. 93 (Adj. Sess.), § 12.

History

Source.

V.S. 1947, § 8355. P.L. § 8495. G.L. § 6912. 1908, No. 62 . P.S. § 5802. V.S. § 4987. R.L. § 4177. G.S. 114, § 12. R.S. 96, § 12. 1818, pp. 16, 17. R. 1797, p. 170, §§ 31, 32. 1793, pp. 12, 13.

Amendments

—2017 (Adj. Sess.). Inserted “or” following “bailiff” and deleted “or grand juror” following “constable”.

—1973 (Adj. Sess.). Omitted reference to “a justice”.

—1965. Substituted “district” for “municipal” judge.

§ 1813. Making or uttering illicit money.

If a person or corporation within the State, without authority of law, emits and utters a bill of credit, or makes, signs, draws, or indorses a bond, promissory writing or note, bill of exchange, order, or other paper to be used as and in lieu of money, such person or each member of such corporation assenting thereto shall be imprisoned not more than one year or fined not more than $600.00, or both.

HISTORY: Amended 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8356. 1947, No. 202 , § 8509. P.L. § 8496. G.L. § 6914. P.S. § 5804. V.S. § 4989. R.L. § 4179. G.S. 119, § 1. R.S. 101, § 1. 1821, p. 6. R. 1797, p. 179, § 9. R. 1787, p. 40.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

§ 1814. Selling or passing illicit money.

A person who sells, utters, or passes a bill of credit, bond, promissory writing or note, bill of exchange, order, or other paper, made, signed, drawn, or indorsed to be used as and in lieu of money, without authority from this State or some other state or country, knowing the same to have been made, signed, drawn, or indorsed for the purposes aforesaid, without such lawful authority, shall be fined not more than $1,000.00.

History

Source.

V.S. 1947, § 8357. P.L. § 8497. G.L. § 6915. P.S. § 5805. V.S. § 4990. R.L. § 4180. G.S. 119, § 2. R.S. 101, § 2. 1821, p. 6. R. 1797, p. 180, § 10. R. 1787, p. 40.

§ 1815. Description of paper forged or counterfeited.

In a complaint, information, or indictment for forgery or counterfeiting, or for uttering and publishing as true an instrument, document, or paper which may be the subject of the offense of forgery or counterfeiting, it shall be sufficient to describe such instrument, document, or paper by the name or designation by which it is usually known or by the purport thereof, without setting forth a copy or facsimile or otherwise describing the same or its value. A misnaming of such instrument, document, or paper shall not affect the cause, provided, that as set forth, the same appears to be any one of the instruments, documents, or papers that is made a subject of the offense of forgery or counterfeiting.

History

Source.

V.S. 1947, § 2407. P.L. § 2378. G.L. § 2547. P.S. § 2269. V.S. § 1908. R.L. § 1648. 1880, No. 19 .

§ 1816. Possession or use of credit card skimming devices and re-encoders.

  1. A person who knowingly, wittingly, and with the intent to defraud possesses a scanning device, or who knowingly, wittingly, and with intent to defraud uses a scanning device to access, read, obtain, memorize, or store, temporarily or permanently, information encoded on the computer chip or magnetic strip of a payment card without the permission of the authorized user of the payment card shall be imprisoned not more than 10 years or fined not more than $10,000.00, or both.
  2. A person who knowingly, wittingly, and with the intent to defraud possesses a re-encoder, or who knowingly, wittingly, and with the intent to defraud uses a re-encoder to place encoded information on the computer chip or magnetic strip or stripe of a payment card or any electronic medium that allows an authorized transaction to occur without the permission of the authorized user of the payment card from which the information is being re-encoded shall be imprisoned not more than 10 years or fined not more than $10,000.00, or both.
  3. Any scanning device or re-encoder described in subsection (e) of this section allegedly possessed or used in violation of subsection (a) or (b) of this section shall be seized and upon conviction shall be forfeited. Upon forfeiture, any information on the scanning device or re-encoder shall be removed permanently.
  4. Any computer, computer system, computer network, or any software or data owned by the defendant that are used during the commission of any public offense described in this section or any computer owned by the defendant that is used as a repository for the storage of software or data illegally obtained in violation of this section shall be subject to forfeiture.
  5. For purposes of this section:
    1. “Payment card” means a credit card, debit card, or any other card that is issued to an authorized user and that allows the user to obtain, purchase, or receive goods, services, money, or anything else of value.
    2. “Re-encoder” means an electronic device that places encoded information from the computer chip or magnetic strip or stripe of a payment card onto the computer chip or magnetic strip or stripe of a different payment card or any electronic medium that allows an authorized transaction to occur.
    3. “Scanning device” means a scanner, reader, or any other electronic device that is used to access, read, scan, obtain, memorize, or store, temporarily or permanently, information encoded on the computer chip or magnetic strip or stripe of a payment card.
  6. Nothing in this section shall preclude prosecution under any other provision of law.

HISTORY: Added 2009, No. 116 (Adj. Sess.), § 3, eff. May 21, 2010.

Chapter 45. Flags and Ensigns

Subchapter 1. Uniform Flag Law

§ 1901. Definition.

The words flag, standard, color, ensign, or shield, as used in this subchapter, shall include any flag, standard, color, ensign, or shield, or copy, picture, or representation thereof, made of any substance or represented or produced thereon, and of any size, evidently purporting to be such flag, standard, color, ensign, or shield of the United States or of this State, or a copy, picture, or representation thereof.

History

Source.

V.S. 1947, § 8599. 1941, No. 192 , § 1.

Short title; Uniform Laws. V.S. 1947, § 8605, derived from 1941, No. 192 , § 8, provided that this subchapter may be cited as the Uniform Flag Law.

The Uniform Flag Law was promulgated by the National Conference of Commissioners on Uniform State Laws in 1917.

CROSS REFERENCES

State flag, insignia, seal, etc., see 1 V.S.A ch. 11.

§ 1902. Display.

A person shall not, in any manner, for exhibition or display:

  1. Place or cause to be placed any word, figure, mark, picture, design, drawing, or advertisement of any nature upon any flag, standard, color, ensign, or shield of the United States or of this State, or authorized by any law of the United States or of this State;
  2. Expose to public view any such flag, standard, color, ensign, or shield upon which shall have been printed, painted, or otherwise produced, or to which shall have been attached, appended, affixed, or annexed any such word, figure, mark, picture, design, drawing, or advertisement; or
  3. Expose to public view for sale, manufacture, or otherwise, or sell, give or have in possession for sale, for gift, or for use for any purpose any substance, being an article of merchandise, or receptacle, or thing for holding or carrying merchandise, upon or to which shall have been produced or attached any such flag, standard, color, ensign, or shield, in order to advertise, call attention to, decorate, mark, or distinguish such article or substance.

History

Source.

V.S. 1947, § 8600. 1947, No. 202 , § 8754. 1941, No. 192 , § 2.

Notes to Opinions

Seal.

Medals with portrait of Robert Frost on one side and Vermont seal on the other made by private manufacturer, would be in violation of this section if sold in the state of Vermont. 1962-64 Vt. Op. Att'y Gen. 117.

State coat of arms.

The provisions of this section refer to and include the coat of arms of the state and the use of such shield or any other figure or design which incorporates it is prohibited, except as set forth in § 1904 of this title. 1952 Vt. Op. Att'y Gen. 60.

§ 1903. Illegal acts.

A person shall not publicly mutilate, deface, defile, defy, trample upon, or by word or act cast contempt upon any such flag, standard, color, ensign, or shield.

History

Source.

V.S. 1947, § 8601. 1947, No. 202 , § 8755. 1941, No. 192 , § 3.

§ 1904. Construction.

This subchapter shall not apply to any act permitted by the statutes of the United States, or of this State, or by the U.S. Army and Navy regulations, nor shall it apply to any printed or written document or production, stationery, ornament, picture, or jewelry whereon shall be depicted such flag, standard, color, ensign, or shield with no design or words thereon and disconnected with any advertisement.

HISTORY: Amended 1964, No. 23 (Sp. Sess.), eff. March 9, 1964; 1991, No. 222 (Adj. Sess.), § 1.

History

Source.

V.S. 1947, § 8602. 1941, No. 192 , § 4.

Amendments

—1991 (Adj. Sess.). Deleted “nor shall it apply to reproduction of the state seal, shield or flag on a commemorative medal or for public display not connected with any advertising, if permission for such use is requested by the Vermont historical society and written approval is given by the governor” at the end of the section.

—1964. Added exclusion of reproduction of state seal, shield or flag for commemorative medal or for public display without advertising, provided permission is given by the governor upon request of the historical society.

Notes to Opinions

Poem.

A poem not to be used in any way as advertising any product, service or other thing, may have a picture of the state’s seal. 1948 Vt. Op. Att'y Gen. 112.

§ 1904a. Use of State Seal and Coat of Arms.

The State Seal and Coat of Arms may be used for commemorative medals or for public displays not connected with any advertising, provided that:

  1. the use does not imply State endorsement or approval when none has been given; and
  2. a sample of the medal or display is delivered to the Secretary of State prior to manufacture, distribution, or sale.

HISTORY: Added 1991, No. 222 (Adj. Sess.), § 2.

CROSS REFERENCES

Use of State Seal generally, see 1 V.S.A. § 494 .

§ 1905. Penalty.

A person who violates any provision of this subchapter shall be imprisoned not more than one year or fined not more than $1,000.00, or both.

History

Source.

V.S. 1947, § 8603. 1941, No. 192 , § 5.

§ 1906. Uniform interpretation.

This subchapter shall be so construed as to effectuate its general purpose and to make uniform the laws of the states which enact it.

History

Source.

V.S. 1947, § 8604. 1941, No. 192 , § 7.

Subchapter 2. Other Provisions

§ 1931. Repealed. 1979, No. 152 (Adj. Sess.).

History

Former § 1931. Former § 1931, relating to prohibition of flags and ensigns, was derived from V.S. 1947, § 8591, P.L. § 8733 and 1919, No. 195 , § 1.

Chapter 47. Frauds

CROSS REFERENCES

Falsification of corporate income tax returns, see 32 V.S.A. §§ 5844 , 5894.

Filing false meals and rooms tax returns, see 32 V.S.A. § 9279 .

Fraudulent claims or representations by public officers or employees, see § 3016 of this title.

§ 2001. False personation.

A person who falsely personates or represents another, and in such assumed character receives money or other property intended to be delivered to the party so personated, with intent to convert the same to the person’s own use, shall be imprisoned not more than 10 years or fined not more than $2,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 2005, No. 156 (Adj. Sess.), § 1.

History

Source.

V.S. 1947, § 8320. 1947, No. 202 , § 8473. P.L. § 8459. G.L. § 6881. P.S. § 5775. V.S. § 4959. R.L. § 4153. G.S. 113, § 22. R.S. 95, § 14.

Amendments

—2005 (Adj. Sess.). Substituted “the person’s” for “his” and “$2,000.00” for “$500.00”.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

Revision note—

Words “impersonates” and “impersonated” were changed to “personates” and “personated” because the latter seem to be preferable terms.

CROSS REFERENCES

False personation of officer, see § 3002 of this title.

ANNOTATIONS

Elements of offense.

Information alleging that respondent, by falsely personating a person to whom a bank check was intended to be delivered, fraudulently obtained said check charged offense under this section. State v. Marshall, 77 Vt. 262, 59 A. 916, 1905 Vt. LEXIS 119 (1905).

If state shows that respondent obtained check by falsely personating another and that check was intended to be delivered to the person so falsely personated, conviction may be had under this section. State v. Marshall, 77 Vt. 262, 59 A. 916, 1905 Vt. LEXIS 119 (1905).

§ 2002. False pretenses or tokens.

A person who designedly by false pretenses or by privy or false token and with intent to defraud, obtains from another person money or other property, or a release or discharge of a debt or obligation, or the signature of a person to a written instrument, the false making whereof would be punishable as forgery, shall be imprisoned not more than 10 years or fined not more than $2,000.00, or both, if the money or property so obtained exceeds $900.00 in value. A person who violates this section shall be imprisoned for not more than one year or fined not more than $1,000.00, or both, if the money or property obtained in violation of this section is valued at $900.00 or less.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23; 2005, No. 156 (Adj. Sess.), § 2.

History

Source.

V.S. 1947, § 8321. 1947, No. 202 , § 8474. P.L. § 8460. G.L. § 6882. 1917, No. 254 , § 6700. 1908, No. 62 . P.S. § 5776. V.S. § 4960. 1890, No. 48 , § 1. R.L. § 4154. G.S. 113, § 23. R.S. 95, § 15. 1818, p. 15. R. 1797, p. 168, § 29.

Amendments

—2005 (Adj. Sess.). Substituted “$2,000.00” for “$1,000.00” and “$900.00” for “$25.00” in the first sentence and added the second sentence.

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Conduct.

False pretenses may be based on silence or concealment. State v. Allen, 146 Vt. 569, 507 A.2d 975, 1986 Vt. LEXIS 326 (1986).

Presentation for payment of a third party’s check by a person who knows payment on that check has been stopped, but makes no express written or oral representation with respect thereto, constitutes the crime of obtaining money by false pretenses under this section. State v. Allen, 146 Vt. 569, 507 A.2d 975, 1986 Vt. LEXIS 326 (1986).

One can commit the crime of false pretenses under this section by the making of a direct or express representation, whether oral or written, without passing a false token, or by passing a false token, such as a check, and the false representation may be shown indirectly or by implication or by the conduct of the person presenting the check for payment. State v. Allen, 146 Vt. 569, 507 A.2d 975, 1986 Vt. LEXIS 326 (1986).

Construction with other law.

Whether defendant could be found guilty of the statutory crime of false pretenses does not depend on whether he could have been found liable in superior court based on a civil fraud complaint. State v. Agosta, 173 Vt. 97, 787 A.2d 1252, 2001 Vt. LEXIS 369 (2001).

The crime of false pretenses is different crime from the crime of bad checks, governed by section 2022 of this title. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

The elements of the offenses of false pretenses and of issuing or passing bad checks differ since conviction for false pretenses requires proof of intent to defraud, while mere knowledge suffices for the bad check crime, since one must actually obtain property to be convicted for false pretenses, which is not a requirement under section 2022 of this title, governing bad checks, and, finally, since there are permissive presumptions for finding criminal intent under section 2022 which are unavailable under this section. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

A person could pass a check, knowing it would be dishonored, but fully intending to make good on the underlying obligation, which would be a defense to a false pretenses prosecution, but the person would be guilty of the bad check crime under section 2022 of this title. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

Where a check is good when issued, but a person subsequently decides to defraud the payee and stop payment, prosecution lies for false pretenses, but not for the crime of issuing or passing a bad check under section 2022 of this title. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

The property requirements of this section preclude conviction for issuing bad checks as gifts, yet the same act is culpable under section 2022 of this title, governing bad checks. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

While there is significant overlap between this section and section 2022 of this title, governing bad checks, that alone is insufficient to effect an implied repeal of this section. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

There are too many differences between this section and section 2022 of this title, governing bad checks, to hold them repugnant or to conclude that section 2022 is a substitute for this section, particularly where the legislature has deliberately left both sections intact. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

Action of the legislature, taken two years after enacting section 2022 of this title, governing bad checks, in repealing the portion of this section that provided for lesser penalties for thefts involving less than $25.00 indicated that the legislature was well aware of the law and chose to leave the remainder of this section intact, coexisting with section 2022, and precluded a judicial excision of this section. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

Courts in other jurisdictions have endorsed implied repeal of the false pretenses section by the section governing bad checks only when the bad check section was drafted to completely incorporate the false pretenses section. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

Elements of offense.

There are three elements to the offense of false pretenses: first, the offender must act with intent to defraud; second, the offender must use a fraudulent device or artifice, such as a bad check; and, third, the offender must actually obtain money or property with a value in excess of $25.00. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

False personation of another, with the intent thereby fraudulently to obtain property, is a “false pretense,” within meaning of this section. State v. Marshall, 77 Vt. 262, 59 A. 916, 1905 Vt. LEXIS 119 (1905).

If state shows that respondent obtained check by falsely personating another, but person so personated had no interest in check and it was not intended to be delivered to him, unless he was respondent, then the respondent may be convicted under this section. State v. Marshall, 77 Vt. 262, 59 A. 916, 1905 Vt. LEXIS 119 (1905).

If false assertion is made in regard to article, and money is thereby fraudulently obtained, the falsehood is a false pretense within statute against obtaining money by false pretenses, if, in order to ascertain whether the representation is false, it is necessary to apply tests or experiments to the article. In re Greenough, 31 Vt. 279, 1858 Vt. LEXIS 133 (1858).

Evidence.

In prosecution for false pretenses arising from the sale of weapons, evidence of defendant’s failure both to follow through on the paperwork necessary for transfer of the weapons and to notify the victim of his change of address entitled the jury to conclude that defendant intended to defraud the victim and to convict him of false pretenses. State v. Agosta, 173 Vt. 97, 787 A.2d 1252, 2001 Vt. LEXIS 369 (2001).

In prosecution for obtaining money and other property from several companies by false tokens, consisting of checks drawn on banks, well knowing that drawer was not then entitled to draw thereon for amount of respective checks, with intent to defraud such companies, and for uttering and publishing forged instruments, consisting of such checks, for same fraudulent purpose, it was unnecessary to show corporate existence of banks on which checks were drawn, since they were not parties allegedly defrauded. State v. Conley, 107 Vt. 72, 176 A. 300, 1935 Vt. LEXIS 146 (1935).

Intent.

To establish the element of intent to defraud, statements of intention falsely representing a present state of mind — including false promises of future action — will suffice. State v. Agosta, 173 Vt. 97, 787 A.2d 1252, 2001 Vt. LEXIS 369 (2001).

The “intent to defraud” element requires a scheme to cheat the victim. State v. Agosta, 173 Vt. 97, 787 A.2d 1252, 2001 Vt. LEXIS 369 (2001).

In the case of defendant convicted of obtaining money or other property by false pretenses, criminal intent as to the victim was not lacking where defendant knew that his false statement to the victim’s sister would be passed on to the victim and where he intended thereby to induce her to part with her money. State v. Bissonette, 145 Vt. 381, 488 A.2d 1231, 1985 Vt. LEXIS 305 (1985).

Particular cases.

Where jury could find defendant drew checks and gave them in payment of existing debts knowing he has insufficient funds to cover them, his testimony that the thought checks given them by a third person would cover the checks he drew was contradicted and the deposits his wife made, assertedly of the checks made out to defendant, were to the wrong account, jury could find defendant guilty of designedly issuing two checks with intent to defraud because he knew the sums were not covered, and obtaining thereby the discharge of debts of over $25 value. State v. Zeisner, 133 Vt. 375, 340 A.2d 69, 1975 Vt. LEXIS 408 (1975).

Place of commission of offense.

Where person obtained property in this state by deceitfully representing in a letter written without the state that he was another person and by falsely personating that other person in an interview within this state with the person to whom the letter was sent and from whom the property was obtained, offense of obtaining property by false pretenses was committed in this state. State v. Marshall, 77 Vt. 262, 59 A. 916, 1905 Vt. LEXIS 119 (1905).

Purpose.

One purpose of this section is to protect the weak and susceptible from being preyed upon. State v. Bissonette, 145 Vt. 381, 488 A.2d 1231, 1985 Vt. LEXIS 305 (1985).

Questions for jury.

Whether false pretenses were such as ought to mislead a man of ordinary prudence could not be determined on demurrer, that question being for jury. State v. Switzer, 63 Vt. 604, 22 A. 724, 1891 Vt. LEXIS 162 (1891).

Reliance by victim.

The only materiality requirement imposed with respect to the crime of false pretenses is that the victim must have materially relied upon the misrepresentation. State v. Agosta, 173 Vt. 97, 787 A.2d 1252, 2001 Vt. LEXIS 369 (2001).

In prosecution for false pretenses arising from the sale of weapons, defendant’s letterhead concerning his licensing status falsely represented a material fact and thus qualified for the crime of false pretenses, given the victim’s testimony that (1) he assumed he was purchasing the weapons from a federally licensed dealer; (2) he relied upon defendant’s written representation as to that fact; and (3) he would not have given defendant his money and gone through with the transaction had he known that defendant did not in fact have the licenses he claimed he did. State v. Agosta, 173 Vt. 97, 787 A.2d 1252, 2001 Vt. LEXIS 369 (2001).

Victim of fraud need not have relied solely upon the false representation in parting with his money, but only materially upon it. State v. Bissonette, 145 Vt. 381, 488 A.2d 1231, 1985 Vt. LEXIS 305 (1985).

In the case of defendant convicted of obtaining money or other property by false pretenses, evidence that defendant falsely stated that he had been working across the street from the victim’s home and had noticed shingles missing from her roof, that he pretended to talk over the telephone with the woman whose approval was needed for repairs and then misrepresented her approval, permitted the jury to conclude beyond a reasonable doubt that the victim acted in material reliance upon defendant’s falsehood when she paid for the repairs. State v. Bissonette, 145 Vt. 381, 488 A.2d 1231, 1985 Vt. LEXIS 305 (1985).

In the case of defendant convicted of obtaining money or other property by false pretenses where extrinsic evidence of the victim’s reliance on defendant’s false representations was clear, trial court was justified in denying defendant’s request that the victim be ordered to undergo psychiatric examination to determine whether she was mentally competent to rely on defendant’s representations. State v. Bissonette, 145 Vt. 381, 488 A.2d 1231, 1985 Vt. LEXIS 305 (1985).

Sufficiency of indictment.

Where note was in blank form when respondent obtained employee’s signature on representation that it was a paper that had to do with the employee’s social security and thereafter filled in the blanks and discounted the note at the bank, it was proper for information charging false pretenses to set forth the instrument in blank. State v. Quesnel, 124 Vt. 491, 207 A.2d 155, 1965 Vt. LEXIS 278 (1965).

An information was sufficient which charged that respondent defrauded another, inducing him to deliver to respondent a large number of sheep, which he converted to his own use, by unlawfully, knowingly, designedly, and falsely pretending that a designated person in Boston had already mailed to respondent a check at such a time that by the course of regular mail it would be delivered to respondent in the afternoon of that same day and that respondent then and there well knew that said check had not been so mailed and would not be so delivered, but made said false representations with intent to defraud. State v. Ricker, 81 Vt. 456, 70 A. 1059, 1908 Vt. LEXIS 162 (1908).

It was not necessary to allege that respondent knew pretenses to be false, if it was alleged that he designedly made them with intent to defraud. State v. Switzer, 63 Vt. 604, 22 A. 724, 1891 Vt. LEXIS 162 (1891).

It was sufficient to allege that signature was obtained by false pretenses, setting forth what they were, and a further description of them as “inducements” and “representations” did no harm, being mere tautology. State v. Switzer, 63 Vt. 604, 22 A. 724, 1891 Vt. LEXIS 162 (1891).

Cited.

Cited in State v. Bergerson, 144 Vt. 200, 475 A.2d 1071, 1984 Vt. LEXIS 438 (1984).

Law Reviews —

Criminal prosecution of insincere promises under the false pretense statute, see 7 Vt. L. Rev. 125 (1982).

§ 2003. False tokens described.

The use of a matured check, or other order for the payment of money, as a means of obtaining from another person money or other property, or a release or discharge of a debt or obligation, or the signature of a person to a written instrument the false making whereof would be punishable as forgery, such as is specified in section 2002 of this title, by a person who knows that the drawer thereof is not entitled to draw for the sum specified therein upon the drawee, is the use of a false token within the meaning of section 2002 of this title, although representation is not made in respect thereto.

History

Source.

V.S. 1947, § 8323. P.L. § 8462. G.L. § 6883. P.S. § 5777. 1896, No. 108 , § 1.

ANNOTATIONS

Cited.

Cited in State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982); State v. Allen, 146 Vt. 569, 507 A.2d 975, 1986 Vt. LEXIS 326 (1986).

§ 2004. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

History

Former § 2004. Former § 2004, relating to justice and district court jurisdiction, was derived from V.S. 1947, § 8322; 1947, No. 202 , § 8475; P.L. § 8461; G.L. § 6882; 1917, No. 254 , § 6700; 1908, No. 62 ; P.S. § 5776; V.S. § 4960; 1890, No. 48 , § 1; R.L. § 4154; G.S. 113, § 23; R.S. 95, § 15; 1818, p. 15 and R. 1797, p. 168, § 29 and was amended by 1965, No. 194 , § 10.

§ 2005. False advertising.

A person, firm, corporation, or association, or an agent or employee thereof, who, with intent to sell courses of instruction or to dispose of merchandise, real estate, securities, or service or to induce the public to enter into any obligations relating thereto, shall knowingly make, publish, circulate, or place before the public on radio or television or in a newspaper, magazine, or other publication or in form of a book, notice, circular, pamphlet, letter, handbill, poster, bill, sign, placard, card, label, or tag, or through an electronic communication, an advertisement, or statement regarding educational advantages, merchandise, real estate, securities or service, which advertisement or statement shall contain anything untrue, deceptive, or misleading, shall be fined not more than $1,000.00.

HISTORY: Amended 1967, No. 20 , eff. March 3, 1967; 1999, No. 124 (Adj. Sess.), § 5.

History

Source.

V.S. 1947, § 8324. P.L. § 8463. 1931, No. 165 .

Amendments

—1999 (Adj. Sess.). Inserted “or through an electronic communication” preceding “an advertisement”.

—1967. Added phrases “courses of instruction” and “educational advantages”.

ANNOTATIONS

Elements.

To make false advertising an offense under this section, it is not necessary that any person be cheated or defrauded by a false statement, but only that the material was false and intentionally circulated to induce the public to buy the property or service offered. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

Making it an offense under this section to knowingly make or circulate an untrue, deceptive or misleading advertisement forbids the circulation as an inducement to business transactions of untrue, deceptive or misleading representations of fact concerning goods and services offered for sale. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

False representations and broken promises referring merely to the future do not constitute ground for establishing legal liability for fraud and deceit. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

Findings.

Finding that defendant’s use of word “granting,” in advertisement for college with two and four-year programs granting associate and bachelor degrees, referred to authority then existing to grant degrees was warranted. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

Advertisement soliciting applicants for college with two and four-year programs granting associate and bachelor degrees was false, deceptive, and misleading within prohibition of this section insofar as the school was not then empowered to grant degrees. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

Alleged fact that youth of country should not be exposed to defendant’s philosophies, teachings and corrupting influence afforded no proper basis for conviction of false advertising to obtain applicants for admission to a college where defendant had never made his character an issue. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

Interstate commerce.

This section making it an offense to knowingly make or circulate an untrue, deceptive or misleading advertisement in a newspaper, magazine or other publication or in form of a book, notice, etc., does not impose an unconstitutional burden on interstate commerce. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

A statute relating to advertising that is addressed to a proper and traditional subject of the police power does not violate the commerce clause when not in conflict with the federal scheme. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

Jurisdiction.

County court had jurisdiction over prosecution for false advertising under this section where allegedly false advertisements appeared in newspaper sold and distributed in the county even though the material may have been written and printed elsewhere. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

To establish criminal responsibility it is not necessary that the offender do every act necessary to complete the crime within the state where he is prosecuted. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

One who while absent from the jurisdiction commits an offense within the state by means of an innocent agency may be held liable in that state if that is where the crime is accomplished. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

Purpose.

The purpose of this section is to protect the general public which is likely to read the publication. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

Question for jury.

Where the language of false representation referring to the future is susceptible of a construction which makes the statement applicable to present conditions, the interpretation of representation is for the trier of facts. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

Review.

On appeal from conviction of false advertising under this section, the question before the reviewing court was whether the subordinate findings were sufficient in law to sustain trial court’s conclusion as to defendant’s guilt. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

Sufficiency of evidence.

Inconsistency between defendant’s claim in advertisement that he had four doctorates and evidence that he had stated in application for admission to a university and in application for a teaching position that he was a “doctor and,” meaning that he had undertaken graduate study for a doctorate, did not establish falsity of advertising for purposes of criminal prosecution. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

Conviction under this section could not be sustained where findings of false representations were predicated on defendant’s asserted want of credibility rather than on affirmative and substantial evidence of his guilt. State v. Jost, 127 Vt. 120, 241 A.2d 316, 1968 Vt. LEXIS 187 (1968).

§ 2006. False statement as to financial ability.

A person shall not knowingly make to a person, company, or corporation, or to a commercial agency, a false statement in writing signed by himself, herself, or by his or her direction, with intent that it shall be relied upon, respecting his or her financial condition, or the financial ability to pay of himself, herself, or other person, company, or corporation in which he or she is financially interested or by which he or she is employed as manager, secretary, or superintendent, for the purpose of procuring in any form the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of a credit, the discount of an account receivable, or the making, acceptance, discount, sale, or indorsement of a bill of exchange or promissory note, for the benefit of himself, herself, or such other person, company, or corporation.

History

Source.

V.S. 1947, § 8325. P.L. § 8464. G.L. § 6884. 1912, No. 231 , § 1.

§ 2007. Receiving value upon false statement.

Knowing that a false statement in writing has been made respecting the financial condition or means or ability to pay of himself, herself, or other person in whom he or she is financially interested or for whom he or she is acting, a person shall not procure, upon the faith thereof, for the benefit of himself, herself, or such other person, any of the things of benefit specified in section 2006 of this title.

History

Source.

V.S. 1947, § 8326. P.L. § 8465. G.L. § 6885. 1912, No. 231 , § 2.

§ 2008. False statement as to present validity of prior statement.

Knowing that a statement in writing has been made respecting the financial condition or means or ability to pay of himself, herself, or other person in whom he or she is financially interested or for whom he or she is acting, a person shall not falsely represent on a later day, in writing, that such statement would be true if made on such later day, and thereby procure for the benefit of himself, herself, or such other person any of the things of benefit specified in section 2006 of this title.

History

Source.

V.S. 1947, § 8327. P.L. § 8466. G.L. § 6886. 1912, No. 231 , § 3.

§ 2009. Penalties.

A person who violates a provision of sections 2006-2008 of this title shall be imprisoned not more than one year or fined not more than $1,000.00, or both.

History

Source.

V.S. 1947, § 8328. P.L. § 8467. G.L. § 6887. 1912, No. 231 , § 4.

§ 2010. Repealed. 1967, No. 202, § 6, eff. April 17, 1967.

History

Former § 2010. Former § 2010 related to procuring food or lodging by fraud and is now covered by § 2567 of this title.

Prior to repeal former § 2010 was derived from V.S. 1947, § 8331; 1947, No. 202 , § 8484; P.L. § 8470; 1929, No. 132 ; G.L. § 6889; P.S. § 5778; V.S. § 4961; 1882, No. 81 , § 1.

§ 2011. Fraudulent use of badges.

A person not entitled by the rules and regulations of the departments of the Grand Army of the Republic, the American Legion, Veterans of Foreign Wars of the United States, Sons of Veterans, Woman’s Relief Corps, Ladies of the Grand Army of the Republic, Woman’s Auxiliary of the American Legion, or of any patriotic, secret, or charitable society, who willfully wears a badge, button, or insignia of any such society or uses the same for any fraudulent purpose within the State, shall be imprisoned not more than 30 days or fined not more than $50.00, or both.

History

Source.

V.S. 1947, § 8332. P.L. § 8471. 1929, No. 133 . 1921, No. 212 . G.L. § 6890. 1908, No. 168 . P.S. § 5779. 1906, No. 185 , § 1. V.S. § 4962. 1890, No. 69 , § 1. 1886, No. 100 , § 1.

§ 2012. Misrepresenting livestock.

  1. A person shall not make false or fraudulent representations for the purpose of obtaining a certificate of registration of an animal in a herd register or other register of a club, association, society, company, or corporation.
  2. A person shall not make false or fraudulent representations for the purpose of transfer of such certificate of registration.
  3. A person shall not fraudulently represent that an animal is a registered animal, or has been registered, with the intent that such representation shall be relied upon by another.
    1. A “person” under this section is a person as defined in 1 V.S.A. § 128 . (d) (1) A “person” under this section is a person as defined in 1 V.S.A. § 128 .
    2. A “registered animal” is an animal duly registered as a purebred in the official herd book or similar register of any recognized purebred registry association organized for the purpose of registering a particular breed of animals whose lineage has been established by registry records.
    3. An animal has been “registered” when it qualifies as a registered animal as defined in subdivision (2) of this subsection.
  4. A person who violates a provision of subsection (a), (b), or (c) of this section shall be fined not more than $300.00 and shall be liable civilly for damages.

HISTORY: Amended 1963, No. 81 .

History

Source.

V.S. 1947, § 8333. P.L. § 8472. G.L. § 6891. P.S. § 5780. V.S. § 4963. 1886, No. 72 , § 1.

Amendments

—1963. Section amended generally.

§ 2013. Painting or disguising horses.

A person who knowingly and designedly for the purpose of competing for a purse or premium offered by an agricultural society, corporation, or association within the State, enters or drives a horse or horse kind painted or disguised, or who for such purpose falsely and fraudulently represents a horse to be another from what it really is, or who for such purpose knowingly or designedly enters or drives a horse or horse kind in a class in which it is not entitled to be entered under the rules of such society, corporation, or association, shall be imprisoned not more than six months or fined not more than $500.00, or both.

HISTORY: Amended 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8334. P.L. § 8473. G.L. § 6892. P.S. § 5781. V.S. § 4964. 1892, No. 86 , § 3.

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

§ 2014. Transferring chattel without notice of lien.

A person who sells or disposes of personal property, or causes the same to be sold or disposed of by another, upon which there is a lien created by a previous attachment or conditional sale, or upon which he or she has previously given a bill of sale, without giving notice to the purchaser of such lien or bill of sale, with intent to defraud, shall be imprisoned not more than one year or fined not more than $200.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8338. P.L. § 8477. G.L. § 6896. P.S. § 5785. V.S. § 4968. R.L. § 4158. 1876, No. 71 . 1872, No. 50 .

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Validity of sale without notice.

This section had no effect further than its language imports, and did not in terms declare the validity of such bills of sale as against subsequent conveyances if such notice was omitted, although there is great force in argument that such was the fair implication of its terms. Longey v. Leach, 57 Vt. 377, 1885 Vt. LEXIS 63 (1885).

§ 2015. Transferring realty without notice of encumbrance.

A person who knowingly and with intent to defraud sells, mortgages, or bonds real estate upon which there is an existing encumbrance, and receives a portion of the consideration of such sale or conveyance, without notifying the person taking such title or lien of such prior encumbrance, and embodying a description thereof in such subsequent conveyance, shall be imprisoned not more than three years or fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15.

History

Source.

V.S. 1947, § 8339. P.L. § 8478. G.L. § 6897. P.S. § 5786. V.S. § 4969. R.L. § 4159. 1878, No. 54 .

Amendments

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

§ 2016. Signing or issuing false certificates of stock.

A president or other officer or agent of a bank, railroad, manufacturing, or other corporation who willfully and designedly signs, with intent that it shall be issued or used, or causes to be issued or used, a false certificate or evidence of the ownership or transfer of shares of stock in such corporation, or a certificate or evidence of such ownership or transfer, that such officer has no authority to make or issue, shall be imprisoned not more than 10 years nor less than one year and fined not more than $1,000.00, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15; 1981, No. 223 (Adj. Sess.), § 23.

History

Source.

V.S. 1947, § 8340. P.L. § 8479. G.L. § 6898. P.S. § 5787. V.S. § 4970. R.L. § 4160. G.S. 114, § 13. 1854, No. 20 .

Amendments

—1981 (Adj. Sess.). Penalty provisions were amended so that both imprisonment and fines may be imposed.

—1971 (Adj. Sess.). Omitted phrase “in the state prison”.

ANNOTATIONS

Indictment.

A count in an indictment was bad for argumentativeness in which it was alleged that the respondent, as treasurer of a railroad company, did sign, with intent that the same should be issued and used, a certain false certificate of the ownership of certain capital stock, falsely certifying that one Mead was then and there owner of such stock which he did not own nor have standing in his name, and was not entitled to any share. State v. Haven, 59 Vt. 399, 9 A. 841, 1887 Vt. LEXIS 132 (1887).

Count was bad for duplicity in which it was alleged that respondent signed a certain false certificate of stock with the intent that it be issued and used and that he caused it to be issued and used, as two offenses were charged. State v. Haven, 59 Vt. 399, 9 A. 841, 1887 Vt. LEXIS 132 (1887).

§ 2017. Repealed. 1979, No. 152 (Adj. Sess.).

History

Former § 2017. Former § 2017, concerning removal of collateral from state, was derived from 1966, No. 29 (Sp. Sess.), § 20, eff. at midnight on Dec. 31, 1966.

§ 2018. Fraudulent use of slugs and tokens.

A person who operates or causes to be operated, or attempts to operate or to cause to be operated, any automatic vending machine, slot machine, turnstile, coin-box telephone, or other receptacle designed to receive lawful coin of the United States in connection with the sale, use, or enjoyment of property, transportation, or other service, by means of a slug or any false, counterfeited, mutilated, or sweated coin or by any means, method, trick, or device whatsoever not lawfully authorized by the owner, lessee, or licensee of such machine, turnstile, coin-box telephone, or receptacle; or one who takes, obtains, or receives from or in connection with any automatic vending machine, slot machine, turnstile, coin-box telephone, or other receptacle designed to receive lawful coin of the United States in connection with the sale, use, or enjoyment of property or service, any goods, wares, merchandise, transportation, gas, electric current, article of value, or the use or enjoyment of any transportation or any telephone or telegraph facilities or service, or of any musical instrument, phonograph, or other property, without depositing in and surrendering to such machine, turnstile, coin-box telephone, or other receptacle lawful coin to the amount required therefor by the owner, lessee, or licensee of such machine, turnstile, coin-box telephone, or receptacle, shall be fined not more than $100.00 or be imprisoned for not more than 30 days, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15.

History

Source.

V.S. 1947, § 8342. P.L. § 8482. 1933, No. 151 , § 1.

Amendments

—1971 (Adj. Sess.). Omitted phrase “in the house of correction”.

§ 2019. Manufacture and sale of devices for cheating.

A person who manufactures for sale, advertises for sale, sells, offers for sale, or gives away any slug, device, or substance whatsoever, designed or calculated to be placed or deposited in any automatic vending machine, slot machine, turnstile, coin-box telephone, or other such receptacle, depository or contrivance, designed to receive lawful coin of the United States in connection with the sale, use, or enjoyment of property or service, with the intent or having cause to believe that such slug, device, or substance shall or will be used to cheat or defraud the person entitled to the contents of any such machine, turnstile, coin-box telephone, or other such receptacle, depository, or contrivance, shall be fined not more than $500.00 or be imprisoned for not more than one year, or both.

HISTORY: Amended 1971, No. 199 (Adj. Sess.), § 15.

History

Source.

V.S. 1947, § 8343. P.L. § 8483. 1933, No. 151 , § 2.

Amendments

—1971 (Adj. Sess.). Omitted phrase “in the house of correction”.

§ 2020. Repealed. 1959, No. 262, § 37, eff. June 11, 1959.

History

Former § 2020. Former § 2020 related to patent right note and was repealed as obsolete following revision commission’s recommendation.

Such section was derived from V.S. 1947, § 8592; 1947, No. 202 , § 8746; P.L. § 8734; G.L. § 7112; P.S. § 5970; V.S. § 5151; R.L. § 4325; 1870, No. 68 , § 3.

§ 2021. Telecommunications fraud and facilitation of telecommunications fraud.

  1. Definitions.   As used in this section:
    1. “Telecommunications device” means any type of instrument, device, machine, or equipment that is capable of transmitting or receiving interactive two-way electromagnetic communication, including voice, image, data, and information, or any part of such instrument, device, machine, or equipment, or any computer circuit, computer chip, electronic mechanism, or other component that is capable of facilitating the transmission or reception of any interactive two-way electromagnetic communication.
    2. “Telecommunications service” shall be the service provided by a telecommunications service provider as defined in subdivision (3) of this section.
    3. “Telecommunications service provider” means a person providing telecommunications service, companies operating a cable television system as defined in 30 V.S.A. § 501(2) , and companies operating a satellite system.
    4. “Unlawful telecommunications device” means a telecommunications device, identification code, or computer code that, alone or in conjunction with any other item, is used or is intended to be used to commit telecommunications fraud or facilitation of telecommunications fraud.
    5. “Traffic” means to sell, buy, receive, distribute, exchange, offer, advertise, transfer, or dispose of an unlawful telecommunications device, related equipment, or plans or instructions for manufacturing or using such devices.
    6. “Electronic serial number reader” means a device that is capable of acquiring or facilitating the acquisition of an electronic serial number, mobile identification number, personal identification number, or any code or encoded or encrypted transmission useful in originating, facilitating, or transmitting telecommunications service without the consent of the telecommunications service provider.
  2. Telecommunications fraud.   A person with intent to defraud commits the crime of telecommunications fraud by:
    1. charging telecommunications service to an existing telephone number, calling or credit card number, account number, or other identifying subscriber number; or
    2. charging telecommunications service to a false, inactive, counterfeit, or stolen telephone number, calling or credit card number, account number, or other identifying subscriber number; or
    3. obtaining telecommunications service using a false, altered, or stolen identification; or
    4. obtaining or attempting to obtain telecommunications service by the use of an unlawful telecommunications device.
  3. Penalties.   A person who is convicted of telecommunications fraud shall:
    1. if the benefit has a value of less than $500.00, be imprisoned not more than two years or fined not more than $5,000.00, or both; or
    2. if the benefit is $500.00 or more in value, be imprisoned not more than five years or fined not more than $10,000.00, or both.
  4. Amounts involved in a violation of subsection (b) of this section under one course of conduct may be aggregated in determining the charge or the penalty for the offense.
  5. A person commits the crime of facilitation of telecommunications fraud who knowingly:
    1. possesses with intent to defraud, manufactures, or traffics in an unlawful telecommunications device or modifies, programs, or reprograms a telecommunications device designed, adapted, or that can be used:
      1. to commit a theft of telecommunications service; or
      2. to conceal with intent to defraud or to assist another to conceal with intent to defraud from any telecommunications service provider or governmental authority the existence or place of origin or destination of any telecommunications service; or
    2. manufactures or traffics in:
      1. plans or instructions for manufacturing or using an unlawful telecommunications device, except where the person manufactures or traffics in plans or instructions that are used for bona fide educational purposes exclusively; or
      2. material, data, computer facilities, computer software, computer hardware, reader, or other equipment knowing that the purchaser or a third person intends to use the material for the manufacture of an unlawful telecommunications device.
  6. Penalties.   A person convicted of facilitation of telecommunications fraud shall:
    1. for a first offense, be imprisoned for not more than two years or fined not more than $5,000.00, or both; or
    2. for a second or subsequent offense, be imprisoned not more than five years or fined not more than $20,000.00, or both.
  7. Civil action.   A person damaged as a result of a violation of this section may bring a civil action against the violator for damages and such other relief as the court deems appropriate.

HISTORY: 1961, No. 86 , §§ 1, 2; amended 1999, No. 35 , § 2.

History

Revision note—

Opening paragraph and subdivs. (1), (2) and (3) thereof, and the penalty provision, are from § 1 of 1961, No. 86 ; paragraph following the penalty provision is from § 2 of that Act.

Amendments

—1999. Section amended generally.

§ 2022. Bad checks.

A person who issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee, shall be imprisoned for not more than one year or fined not more than $1,000.00, or both. The court shall order restitution in the amount of the check or order, together with a service charge not to exceed $5.00, if it is established that the defendant has the ability to pay. For the purposes of this section, it may be inferred that the issuer knew that the check or order, other than a post-dated check or order, would not be paid if:

  1. the issuer had no account with the drawee at the time the check or order was issued; or
  2. the issuer had insufficient funds with the drawee at the time the check or order was issued or presented for payment, and
    1. the check or order was presented to the drawee for payment not more than 30 days after the date of issuance; and
    2. payment was refused by the drawee for reasons other than seizure or attachment of the issuer’s funds by order of a court or authorized governmental agency; and
    3. the issuer or a person acting in his or her behalf failed to make full satisfaction of the amount of the check or order within 10 days after receiving notice of its dishonor by the drawee.

HISTORY: Added 1971, No. 254 (Adj. Sess.), § 3, eff. April 11, 1972; amended 1981, No. 232 (Adj. Sess.), § 1, eff. May 6, 1982.

History

Amendments

—1981 (Adj. Sess.). Sentence providing that the court shall order restitution in the amount of the check or order, together with a charge not to exceed $5.00, if it is established that the defendant has the ability to pay, was added; last sentence was rephrased; subdiv. (2) was amended generally and subdivs. (A)-(C) were added.

ANNOTATIONS

Construction with other law.

Criminal prosecution for passing bad checks under 13 V.S.A. § 2022 was excepted from the automatic stay under 11 U.S.C.S. § 362(b)(1); therefore, a debtor found no relief by filing an action against a prosecutor to enjoin a criminal proceeding, even though restitution was a possible remedy. Prosecutor’s motivation was not material. Pickett v. Quinn, 321 B.R. 663, 2005 Bankr. LEXIS 206 (Bankr. D. Vt. 2005).

The crime of false pretenses, governed by section 2002 of this title, is a different crime from the crime of bad checks. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

The elements of the offenses of false pretenses and of issuing or passing bad checks differ since conviction for false pretenses requires proof of intent to defraud, while mere knowledge suffices for the bad check crime, since one must actually obtain property to be convicted for false pretenses, which is not a requirement under this section and, finally, since there are permissive presumptions for finding criminal intent under this section which are unavailable under section 2002 of this title, governing false pretenses. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

A person could pass a check, knowing it would be dishonored, but fully intending to make good on the underlying obligation, which would be a defense to a false pretenses prosecution under section 2002 of this title, but the person would be guilty of the bad check crime. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

Where a check is good when issued, but a person subsequently decides to defraud the payee and stop payment, prosecution lies for false pretenses under section 2002 of this title, but not for the crime of issuing or passing a bad check. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

The property requirements of section 2002 of this title, governing false pretenses, preclude conviction for issuing bad checks as gifts, yet the same act is culpable under this section. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

While there is significant overlap between section 2002 of this title, governing false pretenses, and this section, that alone is insufficient to effect an implied repeal of section 2002. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

There are too many differences between section 2002 of this title, governing false pretenses, and this section to hold them repugnant or to conclude that this section is a substitute for section 2002, particularly where the legislature has deliberately left both sections intact. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

Action of the legislature, taken two years after enacting this section, in repealing the portion of section 2002 of this title, governing false pretenses, that provided for lesser penalties for thefts involving less than $ 25.00, indicated that the legislature was well aware of the law and chose to leave the remainder of section 2002 intact, coexisting with this section, and precluded a judicial excision of section 2002. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

Courts in other jurisdictions have endorsed implied repeal of the false pretenses section by the bad check section only when the bad check section was drafted to completely incorporate the false pretenses section. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

Elements of offense.

The state must prove two elements to obtain a conviction for violating this section: (1) that the defendant issued or passed a check, and (2) that the defendant had knowledge that it would not be honored. State v. McBurney, 145 Vt. 201, 484 A.2d 926, 1984 Vt. LEXIS 568 (1984).

The offense of issuing or passing bad checks has two elements: first, the offender must issue or pass a check; and, second, at the same time the offender must have knowledge that the check will not be paid, which knowledge may be presumed if the offender drew the check on a fictitious account or failed to provide sufficient funds to pay the check within ten days of notice of dishonor. State v. Foley, 140 Vt. 643, 443 A.2d 452, 1982 Vt. LEXIS 466 (1982).

Inferences.

This section gives the state only a permissive inference that a check will not be honored under certain circumstances. State v. McBurney, 145 Vt. 201, 484 A.2d 926, 1984 Vt. LEXIS 568 (1984).

Cited.

Cited in State v. Allen, 146 Vt. 569, 507 A.2d 975, 1986 Vt. LEXIS 326 (1986).

§ 2023. Simulating objects of antiquity or rarity.

A person who, with the purpose of defrauding anyone or with the knowledge that he or she is facilitating a fraud to be perpetrated by anyone, makes or alters any object so that it appears to have value because of antiquity, rarity, source, or authorship that it does not possess shall be imprisoned for not more than one year or fined not more than $1,000.00, or both.

HISTORY: Added 1975, No. 109 , § 3.

§ 2024. Workers’ compensation fraud; criminal penalties.

Any person, including an employee, employer, medical case manager, health care provider, vocational rehabilitation provider, or workers’ compensation insurance carrier, who knowingly and with intent to defraud makes a false statement or representation for the purpose of obtaining, affecting, or denying any benefit or payment under the provisions of 21 V.S.A. chapter 9 or the provisions of 8 V.S.A. Part 3, relating to insurance, either for herself or himself or for any other person, shall forfeit all benefits or payments obtained as a result of the false statement or representation and all or a portion of any right to compensation under the provisions of 21 V.S.A. chapter 9 as determined by the Commissioner and:

  1. for fraud involving $10,000.00 or more, be fined not more than $100,000.00 or imprisoned not more than three years, or both; and
  2. for fraud involving less than $10,000.00, be fined not more than $10,000.00 or imprisoned not more than two years, or both.

HISTORY: Added 1993, No. 225 (Adj. Sess.), § 23; amended 2003, No. 132 (Adj. Sess.), § 16, eff. May 26, 2004; 2009, No. 142 (Adj. Sess.), § 2.

History

Amendments

—2009 (Adj. Sess.) Added “criminal penalties” following “fraud” in the section catchline, and inserted “or the provisions of Part 3, relating to Insurance, of Title 8” and substituted “herself” for “her” preceding “or himself” in the introductory paragraph.

—2003 (Adj. Sess.) Section amended generally.

§ 2025. Employers without workers’ compensation insurance; criminal sanction.

Any employer who fails to comply with the provisions of 21 V.S.A. § 687 shall be fined not more than $2,500.00 or imprisoned for up to one year, or both. For the purposes of this section, the term employer includes the owner or operator of a business, the officers of a corporation, and the partners in a partnership.

HISTORY: Added 1997, No. 19 , § 10.

§ 2026. Installation of object in lieu of air bag.

  1. No person shall knowingly install or reinstall or knowingly cause to be installed or reinstalled:
    1. an object in lieu of a vehicle air bag that was designed in accordance with the federal safety regulation for the make, model, and year of a vehicle; or
    2. an inoperable vehicle air bag, knowing the air bag is inoperable.
  2. A person who violates subsection (a) of this section shall be imprisoned for not more than three years or fined not more than $10,000.00, or both.
  3. A person who violates subsection (a) of this section, and serious bodily injury as defined in section 1021 of this title or death results, shall be imprisoned for not more than 15 years or fined not more than $10,000.00, or both.

HISTORY: Added 2001, No. 122 (Adj. Sess.), § 1.

§ 2027. Sale or trade of motor vehicle with an inoperable air bag.

  1. Any person selling or trading a motor vehicle who has actual knowledge that the motor vehicle’s air bag is inoperable shall notify the buyer or the person acquiring the trade, in writing, that the air bag is inoperable.
  2. A person who violates subsection (a) of this section shall be subject to a fine of not more than $3,000.00.

HISTORY: Added 2001, No. 122 (Adj. Sess.), § 2.

§ 2028. Fraudulent violations of joint fiduciary accounts.

  1. No person shall intentionally violate 8 V.S.A. § 14212(b) or (e) while acting as a fiduciary on a joint fiduciary account.
  2. A person who violates this section, or misappropriates funds of $500.00 or less in violation of this section, shall be imprisoned not more than two years or fined not more than $10,000.00, or both.
  3. A person who misappropriates funds of more than $500.00 in violation of this section, or who is convicted of a second or subsequent violation of this section, shall be imprisoned not more than 10 years or fined not more than $10,000.00, or both.

HISTORY: Added 2001, No. 115 (Adj. Sess.), § 4, eff. May 28, 2002.

History

Revision note

—2001 (Adj. Sess.). This section was originally enacted as section 2004 of this title and was redesignated as 2028 to avoid conflict with section 2004 of this title as previously repealed by 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.

§ 2029. Home improvement fraud.

  1. As used in this section, “home improvement” includes the fixing, replacing, remodeling, removing, renovation, alteration, conversion, improvement, demolition, or rehabilitation of or addition to any building or land, or any portion thereof, that is used or designed to be used as a residence or dwelling unit. Home improvement shall include the construction, replacement, installation, paving, or improvement of driveways, roofs, and sidewalks, and the limbing, pruning, and removal of trees or shrubbery and other improvements to structures or upon land that is adjacent to a dwelling house.
  2. A person commits the offense of home improvement fraud when he or she enters into a contract or agreement, written or oral, for $500.00 or more, with an owner for home improvement, or into several contracts or agreements for $2,500.00 or more in the aggregate, with more than one owner for home improvement, and he or she knowingly:
      1. fails to perform the contract or agreement, in whole or in part; and (1) (A) fails to perform the contract or agreement, in whole or in part; and
      2. when the owner requests performance or a refund of payment made, the person fails to either:
        1. refund the payment; or
        2. make and comply with a definite plan for completion of the work that is agreed to by the owner;
    1. misrepresents a material fact relating to the terms of the contract or agreement or to the condition of any portion of the property involved;
    2. uses or employs any unfair or deceptive act or practice in order to induce, encourage, or solicit such person to enter into any contract or agreement or to modify the terms of the original contract or agreement; or
    3. when there is a declared state of emergency, charges for goods or services related to the emergency a price that exceeds two times the average price for the goods or services and the increase is not attributable to the additional costs incurred in connection with providing those goods or services.
  3. Whenever a person is convicted of home improvement fraud or of fraudulent acts related to home improvement:
    1. the person shall notify the Office of Attorney General;
    2. the court shall notify the Office of the Attorney General; and
    3. the Office of Attorney General shall place the person’s name on the Home Improvement Fraud Registry.
    1. A person who violates subsection (b) of this section shall be imprisoned not more than two years or fined not more than $1,000.00, or both, if the loss to a single consumer is less than $1,000.00. (d) (1) A person who violates subsection (b) of this section shall be imprisoned not more than two years or fined not more than $1,000.00, or both, if the loss to a single consumer is less than $1,000.00.
    2. A person who is convicted of a second or subsequent violation of subdivision (1) of this subsection shall be imprisoned not more than three years or fined not more than $5,000.00, or both.
    3. A person who violates subsection (b) of this section shall be imprisoned not more than three years or fined not more than $5,000.00, or both, if:
      1. the loss to a single consumer is $1,000.00 or more; or
      2. the loss to more than one consumer is $2,500.00 or more in the aggregate.
    4. A person who is convicted of a second or subsequent violation of subdivision (3) of this subsection shall be imprisoned not more than five years or fined not more than $10,000.00, or both.
    5. A person who violates subsection (c) or (e) of this section shall be imprisoned for not more than two years or fined not more than $1,000.00, or both.
  4. A person who is sentenced pursuant to subdivision (d)(2), (3), or (4) of this section, or convicted of fraudulent acts related to home improvement, may engage in home improvement activities for compensation only if:
    1. the work is for a company or individual engaged in home improvement activities, and the person first notifies the company or individual of the conviction and notifies the Office of Attorney General of the person’s current address and telephone number; the name, address, and telephone number of the company or individual for whom the person is going to work; and the date on which the person will start working for the company or individual; or
    2. the person notifies the Office of Attorney General of the intent to engage in home improvement activities, and that the person has filed a surety bond or an irrevocable letter of credit with the Office in an amount of not less than $50,000.00, and pays on a regular basis all fees associated with maintaining such bond or letter of credit.
  5. The Office of Attorney General shall release the letter of credit at such time when:
    1. any claims against the person relating to home improvement fraud have been paid;
    2. there are no pending actions or claims against the person for home improvement fraud; and
    3. the person has not been engaged in home improvement activities for at least six years and has signed an affidavit so attesting.
  6. [Reserved.]
  7. [Repealed.]

HISTORY: Added 2003, No. 51 , § 1; amended 2005, No. 103 (Adj. Sess.), § 3, eff. April 5, 2006; 2007, No. 211 (Adj. Sess.), § 1; 2015, No. 13 , § 1, eff. May 1, 2015.

History

Amendments

—2015. Deleted “knowingly” preceding “enters into” in subsec. (b), rewrote subdiv. (b)(1), deleted former subsec. (c) and redesignated former subsecs. (d) through (g) as present subsecs. (c) through (f), and repealed subsec. (h).

—2007 (Adj. Sess.). Subsec. (d): Amended generally.

Subdiv. (e)(5): Inserted “or (f)” following “subsection (d)”.

Subsecs. (f)—(h): Added.

—2005 (Adj. Sess.). Subsec. (d): Substituted “department of labor” for “department of labor and industry” in three places.

ANNOTATIONS

Defenses.

Vermont’s home-improvement-fraud law permits conviction if the defendant knowingly promises performance he does not intend to perform or knows will not be performed, in whole or in part. This language suggests that substantial performance is not a complete defense to home improvement fraud in Vermont. State v. Rounds, 2011 VT 39, 189 Vt. 447, 22 A.3d 477, 2011 Vt. LEXIS 39 (2011).

Evidence.

Circumstantial evidence was sufficient grounds for denying a motion for judgment of acquittal on a charge of home improvement fraud. There was uncontested evidence that when defendant abandoned the project, he had left the interior work largely incomplete, the roof not entirely tied into the existing house, and the siding on the ground; furthermore, just a few weeks before leaving the project incomplete, defendant cashed checks from the homeowners totaling $15,000 and ceased communicating with the homeowners. State v. Rounds, 2011 VT 39, 189 Vt. 447, 22 A.3d 477, 2011 Vt. LEXIS 39 (2011).

Defendant’s alternate theory supporting his argument that he should have been acquitted of home improvement fraud—that the homeowners sufficiently changed the terms of the contract such that his actions over the summer could not provide any evidence as to his intent under the original contract—failed. Any change in the sourcing of materials or the selection or payment of a few subcontractors did not alter the fact that defendant accepted significant monies from homeowners shortly before leaving the job and cutting off communication. State v. Rounds, 2011 VT 39, 189 Vt. 447, 22 A.3d 477, 2011 Vt. LEXIS 39 (2011).

Jury instructions.

In a trial for home improvement fraud, the instruction on the permissive inference was flawed. The instruction eliminated the statutory elements that defendant knowingly promised performance he knew would not be performed and that homeowners requested performance or a refund. State v. Rounds, 2011 VT 39, 189 Vt. 447, 22 A.3d 477, 2011 Vt. LEXIS 39 (2011).

Giving a permissive inference instruction that lacked evidentiary support and did not correctly state the law was plain error in a trial for home improvement fraud. The error was obvious; it was prejudicial because it directly undermined defendant’s case without providing him an opportunity to respond; and the jury might have relied upon the presumption rather than upon the evidence and thus convicted defendant based on a standard less rigorous than the Constitution or the statute at issue required. State v. Rounds, 2011 VT 39, 189 Vt. 447, 22 A.3d 477, 2011 Vt. LEXIS 39 (2011).

In a trial for home improvement fraud, there was no evidence to permit instructing the jury on the permissive inference. The State’s proffered testimony did not suggest that the homeowners ever actually requested that defendant perform on the contract or refund their money before they severed their relationship. State v. Rounds, 2011 VT 39, 189 Vt. 447, 22 A.3d 477, 2011 Vt. LEXIS 39 (2011).

Strict liability.

Failing to comply with the statute imposing a notice and surety requirement upon offenders previously convicted of home improvement fraud is a strict liability offense, given the absence of a common law presumption against strict liability; the statutory language, particularly the inclusion of “knowingly” elsewhere in the statute; and the fact that three Roy factors weighed in favor of strict liability. State v. Witham, 2016 VT 51, 202 Vt. 97, 147 A.3d 1005, 2016 Vt. LEXIS 52 (2016).

§ 2030. Identity theft.

  1. No person shall obtain, produce, possess, use, sell, give, or transfer personal identifying information belonging or pertaining to another person with intent to use the information to commit a misdemeanor or a felony.
  2. No person shall knowingly or recklessly obtain, produce, possess, use, sell, give, or transfer personal identifying information belonging or pertaining to another person without the consent of the other person and knowingly or recklessly facilitating the use of the information by a third person to commit a misdemeanor or a felony.
  3. For the purposes of this section, “personal identifying information” includes name, address, birth date, Social Security number, motor vehicle personal identification number, telephone number, financial services account number, savings account number, checking account number, credit card number, debit card number, picture, identification document or false identification document, electronic identification number, educational record, health care record, financial record, credit record, employment record, e-mail address, computer system password, or mother’s maiden name, or similar personal number, record, or information.
  4. This section shall not apply when a person obtains the personal identifying information belonging or pertaining to another person to misrepresent the person’s age for the sole purpose of obtaining alcoholic beverages, tobacco, or another privilege denied based on age.
  5. It shall be an affirmative defense to an action brought pursuant to this section, to be proven by a preponderance of the evidence, that the person had the consent of the person to whom the personal identifying information relates or pertains.
  6. A person who violates this section shall be imprisoned for not more than three years or fined not more $5,000.00, or both. A person who is convicted of a second or subsequent violation of this section involving a separate scheme shall be imprisoned for not more than 10 years or fined not more than $10,000.00, or both.

HISTORY: Added 2003, No. 155 (Adj. Sess.), § 4, eff. June 8, 2004.

§ 2031. Insurance fraud.

  1. Definitions.   As used in this section:
    1. “Conceal” means to take affirmative action intended to prevent others from discovering information. Mere failure to disclose information does not constitute concealment.
    2. “Insurance policy” has the same meaning as in 8 V.S.A. § 4722(3) and includes a workers’ compensation policy issued pursuant to 21 V.S.A. chapter 9.
    3. “Insurer” has the same meaning as in 8 V.S.A. § 4901(2) and includes a workers’ compensation insurer pursuant to 21 V.S.A. chapter 9.
  2. Fraudulent insurance act.   No person shall, with intent to defraud:
    1. present or cause to be presented a claim for payment or benefit, pursuant to any insurance policy, that contains false representations as to any material fact or which conceals a material fact; or
    2. present or cause to be presented any information that contains false representations as to any material fact or that conceals a material fact concerning the solicitation for sale of any insurance policy or purported insurance policy, an application for certificate of authority, or the financial condition of any insurer.
  3. Penalties.   A person who violates subsection (b) of this section shall:
    1. if the benefit wrongfully obtained or the loss suffered by any person as a result of the violation has a value of less than $900.00, be imprisoned for not more than six months or fined not more than $5,000.00, or both; or
    2. if the benefit wrongfully obtained or the loss suffered by any person as a result of the violation has a value of more than $900.00, be imprisoned for not more than five years or fined not more than $10,000.00, or both; or
    3. for a second or subsequent offense, regardless of the value of the benefit wrongfully obtained, be imprisoned not more than five years or fined not more than $20,000.00, or both.
  4. Administrative action.   Upon the conviction of a practitioner for a violation of subsection (b) of this section, the prosecutor shall inform the appropriate licensing authority. Any victim may notify the appropriate licensing authorities in this State and any other jurisdiction in which the practitioner is licensed of the conviction.
  5. This section shall not be construed to limit or restrict prosecution under any other applicable law.
  6. Immunity.   No insurer or insurance professional acting in good faith and furnishing or disclosing information to the appropriate law enforcement official shall be subject to civil liability for libel, slander, or any other cause of action arising from the furnishing or disclosing of such information, except if the information is furnished solely to obtain an advantage in connection with a claim that will be, is being, or has been filed.
  7. The public policy of this State is that the standards of this section shall not apply or be introduced into evidence in any civil or administrative proceeding, whether to argue public policy, materiality, or for any other purpose.

HISTORY: Added 2005, No. 179 (Adj. Sess.), § 1, eff. July 1, 2006; amended 2007, No. 208 (Adj. Sess.), § 4.

History

Amendments

—2007 (Adj. Sess.). Subdiv. (a)(2): Added “and includes a workers’ compensation policy issued pursuant to chapter 9 of Title 21”.

Subdiv. (a)(3): Added “and includes a workers’ compensation insurer pursuant to chapter 9 of Title 21”.

Subdiv. (a)(4): Repealed.

Subsec. (g): Repealed.

Former subsec. (h): Redesignated as subsec. (g).

§ 2032. Sales suppression devices.

  1. As used in this section:
    1. “Automated sales suppression device,” also known as a “zapper,” means a software program, carried on a memory stick or removable compact disc, accessed through an Internet link, or accessed through any other means, that falsifies transaction data, transaction reports, or any other electronic records of electronic cash registers and other point-of-sale systems.
    2. “Electronic cash register” means a device that keeps a register or supporting documents through the means of an electronic device or computer system designed to record transaction data for the purpose of computing, compiling, or processing retail sales transaction data in any manner.
    3. “Phantom-ware” means a hidden programming option, whether preinstalled or installed at a later time, embedded in the operating system of an electronic cash register or hardwired into the electronic cash register that:
      1. can be used to create a virtual second till; or
      2. may eliminate or manipulate transaction records.
    4. “Transaction data” include items purchased by a customer, the price for each item, a taxability determination for each item, a segregated tax amount for each of the taxed items, the amount of cash or credit tendered, the net amount returned to the customer in change, the date and time of the purchase, the name, address, and identification number of the vendor, and the receipt or invoice number of the transaction.
    5. “Transaction reports” means a report documenting, but not limited to, the sales, taxes collected, media totals, and discount voids at an electronic cash register that is printed on cash register tape at the end of a day or shift, or a report documenting every action at an electronic cash register that is stored electronically.
    1. A person shall not knowingly sell, purchase, install, transfer, or possess an automated sales suppression device or phantom-ware. (b) (1) A person shall not knowingly sell, purchase, install, transfer, or possess an automated sales suppression device or phantom-ware.
    2. A person who violates subdivision (1) of this subsection shall be imprisoned for not less than one year and not more than five years and fined not more than $100,000.00, or both.
  2. A person who violates subdivision (b)(1) of this section shall be liable to the State for:
    1. all taxes, interest, and penalties due as the result of the person’s use of an automated sales suppression device or phantom-ware; and
    2. all profits associated with the person’s sale of an automated sales suppression device or phantom-ware.
  3. An automated sales suppression device or phantom-ware and any device containing such device or software shall be deemed contraband and shall be subject to seizure by the Commissioner of Taxes or by a law enforcement officer when directed to do so by the Commissioner of Taxes.

HISTORY: Added 2013, No. 13 , § 1, eff. April 25, 2013.

Chapter 49. Fraud in Commercial Transactions

Subchapter 1. Bills of Lading

§ 2051. Issue of bill of lading for goods not received.

An officer, agent, or servant or a carrier, who, with intent to defraud, issues or aids in issuing a bill of lading, knowing that all or any part of the goods for which the bill of lading is issued, has not been received by such carrier or by an agent of such carrier or by a connecting carrier or is not under the carrier’s control at the time of issuing the bill of lading, shall be imprisoned not more than five years or fined not more than $5,000.00, or both.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 6.

History

Codification.

Criminal offenses involving bills of lading were originally codified as §§ 1041-1047 of Title 9. They were repealed by 1966, No. 29 , § 3 (eff. at midnight Dec. 31, 1966), and reenacted in substantially the same form by §§ 6-12 of the repealing Act set out as this subchapter. Section 1 of that Act adopted the Uniform Commercial Code, codified as Title 9A of V.S.A.

§ 2052. Issue of bill of lading containing false statement.

An officer, agent, or servant of a carrier, who, with intent to defraud, issues or aids in issuing a bill of lading for goods knowing that it contains any false statement, shall be imprisoned not more than one year or fined not more than $1,000.00, or both.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 7.

§ 2053. Issue of duplicate bills of lading not so marked.

An officer, agent, or servant of a carrier, who, with intent to defraud, issues or aids in issuing a duplicate or additional negotiable bill of lading for goods in violation of 9A V.S.A. § 7—402, knowing that a former negotiable bill of lading for the same goods or any part of them is outstanding and uncancelled, shall be imprisoned not more than five years or fined not more than $5,000.00, or both.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 8.

§ 2054. Negotiation of bill of lading for goods subject to security interest.

A person who ships goods to which he or she has not title or in which there is a security interest and who takes for such goods a negotiable bill of lading which he or she afterwards negotiates for value with intent to deceive and without disclosing his or her want of title or the existence of the security interest, shall be imprisoned not more than one year or fined not more than $1,000.00, or both.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 9.

§ 2055. Negotiation of bill of lading when goods are not in carrier’s possession.

A person who, with intent to deceive, negotiates or transfers for value a bill of lading knowing that any or all of the goods that by the terms of the bill of lading appear to have been received for transportation by the carrier that issued the bill of lading, are not in the possession or control of the carrier or of a connecting carrier, without disclosing this fact, shall be imprisoned not more than five years or fined not more than $5,000.00, or both.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 10.

§ 2056. Inducing carrier to issue bill of lading when goods have not been received.

A person who, with intent to defraud, secures the issue by a carrier of a bill of lading, knowing that at the time of issue, any or all of the goods described in the bill of lading as received for transportation have not been received by the carrier or an agent of the carrier or a connecting carrier or are not under the carrier’s control, by inducing an officer, agent, or servant of the carrier falsely to believe that the goods have been received by the carrier or are under its control, shall be imprisoned not more than five years or fined not more than $5,000.00, or both.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 11.

§ 2057. Issue of nonnegotiable bill of lading not so marked.

A person who, with intent to defraud, issues or aids in issuing a nonnegotiable bill of lading without the words “not negotiable” placed plainly upon the face thereof, shall be imprisoned not more than five years or fined not more than $5,000.00, or both.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 12.

Subchapter 2. Warehouse Receipts

§ 2061. Issue of warehouse receipt for goods not received.

A warehouseman, or any officer, agent or servant of a warehouseman, who issues or aids in issuing a warehouse receipt knowing that the goods for which the warehouse receipt is issued, have not been actually received by the warehouseman, or are not under his or her actual control at the time of issuing the warehouse receipt, shall be imprisoned not more than five years or fined not more than $5,000.00, or both.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 13.

History

Codification.

Criminal offenses involving warehouse receipts were originally codified as §§ 1261-1266 of Title 9. They were repealed by 1966, No. 29 , § 3 (eff. at midnight Dec. 31, 1966), and reenacted in substantially the same form by §§ 13-18 of the repealing Act set out as this subchapter. Section 1 of that Act adopted the Uniform Commercial Code, codified as Title 9A of V.S.A.

§ 2062. Issue of warehouse receipt containing false statement.

A warehouseman, or any officer, agent, or servant of a warehouseman, who fraudulently issues or aids in fraudulently issuing a warehouse receipt for goods knowing that it contains any false statement, shall be imprisoned not more than one year or fined not more than $1,000.00, or both.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 14.

§ 2063. Issue of duplicate warehouse receipts not so marked.

A warehouseman, or any officer, agent, or servant of a warehouseman, who issues or aids in issuing a duplicate or additional negotiable warehouse receipt for goods knowing that a former negotiable warehouse receipt for the same goods or any part of them is outstanding and uncancelled, without plainly placing upon the face thereof the word “Duplicate,” except in the case of a lost or destroyed warehouse receipt after proceedings as provided for in 9 V.S.A. § 7 —601, shall be imprisoned not more than five years or fined not more than $5,000.00, or both.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 15.

§ 2064. Issue for warehouseman’s goods of warehouse receipts that do not state his or her ownership.

Where there are deposited with or held by a warehouseman goods of which he or she is owner, either solely or jointly or in common with others, the warehouseman, or any of his or her officers, agents, or servants, who knowing this ownership, issues or aids in issuing a negotiable warehouse receipt for those goods that does not state that ownership, shall be imprisoned not more than one year or fined not more than $1,000.00, or both.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 16.

§ 2065. Delivery of goods without obtaining negotiable warehouse receipt.

A warehouseman, or any officer, agent, or servant of a warehouseman, who delivers goods out of the possession of the warehouseman, knowing that a negotiable warehouse receipt, the negotiation of which would transfer the right to the possession of such goods, is outstanding and uncancelled, without obtaining the possession of the warehouse receipt at or before the time of such delivery, except in the cases provided for in 9A V.S.A. §§ 7—205, 7—209 and 7—601, shall be imprisoned not more than one year or fined not more than $1,000.00, or both.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 17.

§ 2066. Negotiation of warehouse receipt for goods subject to a security interest.

A person who deposits goods to which he or she has not title or in which there is a security interest, and who takes for the goods a negotiable warehouse receipt which he or she afterwards negotiates for value with intent to deceive and without disclosing his or her want of title or the existence of the security interest, shall be imprisoned not more than one year or fined not more than $1,000.00, or both.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 18.

Subchapter 3. Security Agreements

§ 2071. Penalty for failure to discharge security agreement.

When the condition of a security agreement has been fulfilled, within 30 days thereafter, the secured party shall cause the security agreement to be discharged of record. A person who neglects or refuses so to do shall be fined not more than $50.00 nor less than $5.00.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 19.

History

Codification.

Criminal offenses relating to security interests were originally codified as §§ 1693, 1697, 1698, 1759, 1762, 1763, 1765 and 1766 of Title 9. They were repealed by 1966, No. 29 , § 3 (eff. at midnight Dec. 31, 1966), and reenacted in substantially the same form by §§ 19-24 of the repealing Act set out as this subchapter. Section 1 of that Act adopted the Uniform Commercial Code, codified as Title 9A of V.S.A.

§ 2072. Removal of collateral from the State.

No person may, with intent to defraud or to deprive a secured party or debtor of his or her legal rights or remedies, remove collateral from the State, or conceal or aid in concealing it.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 20.

§ 2073. Sale of collateral.

A debtor shall not sell, pledge, or exchange collateral without the consent of the secured party in writing recorded in the office where the security agreement is recorded or upon the back of the security agreement, and, in either case, on the margin of the record thereof in the office where it is recorded.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 21.

§ 2074. Prior security interest to be set forth in subsequent security agreement.

A debtor shall not execute a second or subsequent security agreement covering collateral that is the subject of a previously existing security agreement made by the debtor unless the existence of the previous security agreement is set forth in the subsequent security agreement.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 22.

§ 2075. Penalties.

A person who violates section 2072, 2073, or 2074 of this title shall be fined not more than double the value of the collateral so wrongfully removed from the State, sold, concealed, pledged, mortgaged, or exchanged, and half the fine shall be paid to the party injured.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 23.

§ 2076. Statutory construction.

Statutes using the words “pledge,” “mortgage,” “conditional sale,” “lien,” “assignment,” and like terms in referring to a security interest in personal property shall also apply to a corresponding type of security interest under 9A V.S.A. §§ 1—101 et seq. and sections 2051-2057, 2061-2066, 2071-2076 of this title.

HISTORY: Added 1966, No. 29 (Sp. Sess.), § 24.

Chapter 51. Gambling and Lotteries

History

Construction. 1993, No. 183 (Adj. Sess.), § 11, provided: “The penalties established for the violation of chapter 51 of Title 13 or for violation of chapter 239 of Title 32 shall not be construed to prohibit prosecutions for violations of 13 V.S.A. § 3016 .”

Subchapter 1. Lotteries

§ 2101. Setting up, promoting, or aiding.

Except as provided in section 2143 of this title, a person who sets up or promotes a lottery for money or other property, or disposes of money or property by a lottery, and a person aiding or concerned in so doing, or who knowingly allows premises owned or occupied by him or her or under his or her control to be used for that purpose, or by persons raffling or using a game of chance for money or property, shall be imprisoned not more than one year or fined not more than $10,000.00, or both, for the first offense and imprisoned not more than three years or fined not more than $10,000.00, or both, for each subsequent offense.

HISTORY: Amended 1993, No. 183 (Adj. Sess.), § 4.

History

Source.

V.S. 1947, § 8545. P.L. § 8683. G.L. § 7078. P.S. § 5936. R. 1906, § 5816. V.S. § 5125. R.L. § 4302. G.S. 119, § 5. R.S. 105, § 5. 1821, p. 7. R. 1797, p. 180, § 11. R. 1787, p. 93.

Amendments

—1993 (Adj. Sess.). Added “except as provided in section 2143 of this title” preceding “a person who”, substituted “imprisoned not more than one year or fined not more than $10,000.00, or both, for the first offense and imprisoned not more than three years or fined not more than $10,000.00, or both, for each subsequent offense” for “fined not more than $200.00” following “shall be”, and made other minor changes in phraseology.

CROSS REFERENCES

Sale of lottery tickets exempt from state gaming laws, see 31 V.S.A. § 663 .

ANNOTATIONS

“Bank night” or “cash nite”.

Scheme known as “Bank Night” or “Cash Nite” whereby prize is given at theater to person whose name appears on card drawn by chance is a lottery, though anyone writing name on card and depositing it in registration box kept in lobby of theater is eligible to receive prize without purchasing ticket of admission or paying any money for privilege of participating in draw if he appears in theater to claim prize within one minute after result of draw is announced, since purpose of scheme is to induce people to purchase tickets of admission and attend theater, and those who attend are paying in part for chance of prize. State v. Wilson, 109 Vt. 349, 196 A. 757, 1938 Vt. LEXIS 141 (1938).

Chance.

Word “chance” as used in definition of lottery means an unforeseen or inexplicable cause or its operation, an accident, and is opposed to something which happens by plan or design or by exercise of volition or judgment. State v. Lindsay, 110 Vt. 120, 2 A.2d 201, 1938 Vt. LEXIS 127 (1938).

Casting of votes for candidate in contest in which customers of participating merchants received ballots according to price of articles purchased and prizes were to be awarded to candidate receiving largest number of votes, was what determined result, and, since voting was voluntary and designed act by voter, who determined not only that he would vote but also for whom, and number of votes he would procure and cast, result could not be said to be determined by chance. State v. Lindsay, 110 Vt. 120, 2 A.2d 201, 1938 Vt. LEXIS 127 (1938).

That there might have been fraud or sharp practice in conduct of such contest did not make contest lottery, since such fraud or sharp practice, if shown, would not tend to indicate that blind fate was deciding factor in contest. State v. Lindsay, 110 Vt. 120, 2 A.2d 201, 1938 Vt. LEXIS 127 (1938).

Complaint or information.

As no lottery is authorized in this state, it is not necessary that complaint under this section should allege description of lottery in question. State v. Wersebe, 107 Vt. 529, 181 A. 299, 1935 Vt. LEXIS 210 (1935).

Count in information apparently charging respondent with aiding in promotion of lottery simply by buying lottery ticket was defective, since statute was enacted for protection of purchaser. State v. Wersebe, 107 Vt. 529, 181 A. 299, 1935 Vt. LEXIS 210 (1935).

Construction with other law.

Liquor control board did not exceed its authority in promulgating and enforcing regulation prohibiting illegal gambling on licensed premises. In re Con-Elec Corp., 168 Vt. 576, 716 A.2d 822, 1998 Vt. LEXIS 173 (1998) (mem.).

Lottery defined.

Word “lottery” has no technical meaning distinct from its popular signification and may be defined as a scheme whereby one or more prizes are distributed by chance among persons who have paid or promised a consideration for a chance to win them. State v. Lindsay, 110 Vt. 120, 2 A.2d 201, 1938 Vt. LEXIS 127 (1938); State v. Wilson, 109 Vt. 349, 196 A. 757, 1938 Vt. LEXIS 141 (1938); State v. Wersebe, 107 Vt. 529, 181 A. 299, 1935 Vt. LEXIS 210 (1935).

Merchandising scheme.

Scheme by which merchant or association, on selling merchandise at regular prices, issues to purchasers ballots entitling them to express their choice certain number of times, according to price of articles bought, in favor of any person competing for prizes to be given to persons receiving or holding greatest number of votes, is not lottery. State v. Lindsay, 110 Vt. 120, 2 A.2d 201, 1938 Vt. LEXIS 127 (1938).

Review.

In prosecution under this section, where two counts on which respondent was convicted were based upon but one set of circumstances and attempted to charge but one offense, and court below so treated them and imposed but one fine for both, though on appeal one of such counts was held defective, error was harmless. State v. Wersebe, 107 Vt. 529, 181 A. 299, 1935 Vt. LEXIS 210 (1935).

Several offenses.

This statute is very broad and specifies several offenses, and under it person is criminally liable who knowingly allows premises owned or occupied by him or under his control to be used by persons using game of chance for money or other property. State v. Carrick, 78 Vt. 1, 61 A. 35, 1905 Vt. LEXIS 73 (1905).

Sufficiency.

Certain counts in information charging that respondent disposed of money by lottery, and count charging that respondent aided in promotion of lottery, by paying certain sum to named person on account of lottery ticket held by him, set forth all essential elements of offenses sought to be charged with sufficient clearness and directness. State v. Wersebe, 107 Vt. 529, 181 A. 299, 1935 Vt. LEXIS 210 (1935).

§ 2102. Disposing of property by way of chance.

Except as provided in section 2143 of this title, a person who sells or disposes of property by way of chance or, as an inducement to the sale of property, gives the purchaser or any other person other property to be drawn by way of chance or lottery shall be imprisoned not more than one year or fined not more than $10,000.00, or both, for the first offense and imprisoned not more than three years or fined not more than $10,000.00, or both, for each subsequent offense.

HISTORY: Amended 1993, No. 183 (Adj. Sess.), § 5.

History

Source.

V.S. 1947, § 8546. P.L. § 8684. 1921, No. 214 . G.L. § 7079. P.S. § 5937. V.S. § 5126. R.L. § 4303. G.S. 119, § 6. 1859, No. 20 .

Amendments

—1993 (Adj. Sess.). Added “except as provided in section 2143 of this title” preceding “a person who” and substituted “$10,000.00, or both, for the first offense and imprisoned not more than three years or fined not more than $10,000.00, or both, for each subsequent offense” for “$200.00, or both” at the end of the section.

ANNOTATIONS

Nature and elements of offense.

Criminal statutes such as 13 V.S.A. §§ 2102 and 2143 must define a criminal offense with sufficient certainty so as to inform a person of ordinary intelligence of conduct which is proscribed, and such that arbitrary and discriminatory enforcement is not encouraged. State v. Frechette, 161 Vt. 233, 637 A.2d 1080, 1993 Vt. LEXIS 126 (1993).

Permissible expenses.

Trial court’s order dismissing all counts against defendant for alleged violations of 13 V.S.A. §§ 2102 , 2143(a) was upheld since, in the context of determining permissible expenses in operating games of chance, 13 V.S.A. § 2143(a) was too vague to be fairly enforced. State v. Frechette, 161 Vt. 233, 637 A.2d 1080, 1993 Vt. LEXIS 126 (1993).

§ 2102a. Affirmative defense.

It shall be an affirmative defense to a charge under section 2101 or 2102 of this title that the person charged complied with the provisions of section 2143 of this title.

HISTORY: Added 1993, No. 183 (Adj. Sess.), § 6.

§ 2103. Lottery tickets.

  1. A person shall not:
    1. sell a lottery ticket or an interest therein, or a paper purporting to be a lottery ticket or an interest therein;
    2. open or keep an office, shop, or store for the purpose of selling or procuring a lo