On Appeal from Superior Court, Orleans Unit, Criminal Division March Term, 2013 Martin A. Maley, J.
Sarah A. Baker, Orleans County Deputy State’s Attorney, Newport, for Plaintiff- Appellee.
Kristina I. Michelsen of Kristina I. Michelsen, PLLC, Hardwick, for Defendants-Appellants.
PRESENT: Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and Howard, Supr. J., Specially Assigned
¶ 1. REIBER, C.J.
Defendants appeal their convictions for unlawful trespass under 13 V.S.A § 3705(a). They argue that the trial court erred first in not requiring the State to prove the ownership of the land on which they were arrested, second in not granting their request to include specific language about ownership and lawful possession in the jury charge, and third in not vacating their convictions in the interests of justice. We affirm.
¶ 2. Green Mountain Power Corporation (GMP) is an electric utility that operates several wind-power sites throughout Vermont. It obtained long-term leases of land on Lowell Mountain to construct and operate a twenty-one-turbine wind-power site along a ridge of the mountain. Construction required cutting trees, excavating, and blasting rock to produce a “crane road, ” a leveled strip on which the turbines can be erected by crane. GMP began this work on September 1, 2011, with a tight schedule—its eligibility for $48 million in federal Production Tax Credits depended on the project becoming operational by December 31, 2012.
¶ 3. GMP’s blasting subcontractor took several precautions to reduce the risks of injury from flying rock caused by the blasting, including establishing 1000-foot safety zones around each blasting site. No one was allowed within these zones for a specified period of time before and after each blast. Because a portion of the crane road would be within 100 feet of the leased property’s boundary line, some of the blast safety zones actually extended into neighboring land owned by Donald and Shirley Nelson, who strongly oppose the GMP project. Despite the proximity to an adjacent parcel, the entire area in and around the zones was remote, uninhabited forest, far from any structures.
¶ 4. On or around September 28, 2011, the Nelsons allowed a group to protest the wind-power site by setting up camp on the portion of the Nelsons’ land that fell within a blast safety zone. This prompted GMP and its blasting subcontractor to increase their safety measures, risking a delay of construction of more than five weeks and threatening GMP’s eligibility for the federal tax credits.
¶ 5. On October 13, 2011, GMP responded by initiating a civil suit against the Nelsons for nuisance and interference with contract. GMP asked the court to issue a preliminary injunction ordering the Nelsons and their guests to stay outside the safety zones during blasting times. The order would be enforceable by local police. The Nelsons counterclaimed, alleging that they were the true owners of a portion of the property leased by GMP and that GMP was therefore trespassing on their property. The Nelsons offered testimony from a licensed surveyor supporting their argument, but GMP offered its own leases, a recorded 2002 survey that contained an agreed-upon boundary line between the Nelsons and the owner of the neighboring land, and testimony from two licensed surveyors that disputed the analysis of the Nelsons’ surveyor.
¶ 6. On November 1, 2011, the court granted GMP’s request for a preliminary injunction, concluding that the Nelsons and their guests were acting out of a desire to injure GMP by deliberately exposing themselves to potential blasting hazards, inflicting liability or imposing delays. The court also denied the Nelsons’ request for a temporary restraining order, which would have barred GMP from occupying the disputed land. In denying the request, the court observed that there was a genuine issue of fact regarding the location of the boundary line and that the Nelsons had thus made out a prima facie case for civil trespass. Nevertheless, the court concluded that the Nelsons had not established that they would suffer irreparable harm if the court denied the restraining order or that such an order would serve the public interest. In contrast, the court noted that the harm to GMP from an injunction would be great.
¶ 7. On December 5, 2011, defendants passed through the existing property line—which had been posted by GMP—and entered a portion of the crane-road construction site located on land disputed by the Nelsons and GMP. Defendants’ presence posed a safety risk because GMP’s employees and subcontractors were using machinery and attempting to work. GMP halted construction, and a representative asked defendants to leave. Although aware of the boundary dispute, defendants refused to leave, claiming permission from the Nelsons, who they maintained owned the disputed land. GMP then contacted local police, who arrived at the scene and asked defendants to leave. Defendants again refused and were arrested.
¶ 8. The State charged defendants with unlawful trespass under 13 V.S.A § 3705, which reads, in part:
(a) A person shall be imprisoned for not more than three months or fined not more than $500.00, or both, if, without legal authority or the consent of the person in lawful possession, he or she enters or remains on any land or in any place as to which notice against trespass is given by:
(1) Actual communication by the person in lawful possession or his or her agent or by a law enforcement officer acting on behalf of such person or his or her agent; or
(2) Signs or placards so designed and situated as to give reasonable notice.
13 V.S.A § 3705 (2009) (emphasis added).
¶ 9. The trial was marked by the court’s emphasis that possession—not ownership—was dispositive to the trespass charge. Although the court denied the State’s motion in limine requesting the court exclude witnesses, evidence, and testimony regarding the civil suit entirely, it echoed the State’s concern that such evidence could potentially confuse jurors in the criminal trial by improperly focusing their attention on the potential outcome of the civil boundary dispute rather than the status quo. Addressing this concern, the court specifically noted that it understood that such evidence would be narrowly targeted to help determine the exact location of the existing boundary, rather than the location of the boundary claimed by the Nelsons in the civil suit. The evidence would therefore address the issue of whether defendants were in fact located on land in possession by GMP at the time of their arrest.
¶ 10. The court’s concern about the distinction between possession and ownership was further evident in its instructions to the jury:
Every crime is made up of essential elements.... In this case, the essential elements are that on the ...