This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter
APPEALED FROM: Superior Court, Bennington Unit, Criminal Division. DOCKET NO. 823-7-13 Bncr. Trial Judge: Nancy S. Corsones.
Paul L. Reiber, Chief Justice, John A. Dooley, Associate Justice, Harold E. Eaton, Jr., Associate Justice.
Defendant appeals jury convictions of unlawful trespass, possession of burglary tools, and burglary. We affirm.
At approximately five o'clock in the morning on July 28, 2013, police responded to an activated alarm at an accounting business in the Town of Bennington. Upon arrival at the scene, the officers observed an outside door half open and a padlock hanging from the door with screws removed and laying on the ground. The door is at the top of a cement stairwell that leads down to an inside locked basement door, which had not been disturbed. The stairwell was dirty and full of cobwebs. As it turned out, nothing was missing from the business.
While at the scene, one of the officers observed an individual riding a bicycle away from the immediate area. An officer intercepted and identified the bicyclist, who turned out to be defendant, while the others investigated the nearby grounds. Defendant had a single-sling backpack and was wearing a hooded sweatshirt covered in cobwebs. He told the officer that he was coming from a friend's house. The officer, with defendant's permission, looked inside defendant's backpack, which contained, among other things, tinsnips and a reciprocating saw with two metal-cutting blades. Meanwhile, the other officers observed a set of bicycle tire tracks in the wet grass on the other side of a hedgerow located twenty to thirty feet from the basement door. One of the other officers questioned defendant. A transcript of that recorded conversation, with some redactions, was given to the jury during defendant's trial.
Defendant was arrested and taken to the police station, where he waived his Miranda rights and agreed to be interviewed. At trial, the jury was given a transcript of that interview, with some redactions, and also viewed a portion of the video interview.
Defendant was charged with unlawful trespass, possession of burglary tools, and burglary. Following a two-day trial, the jury convicted him of all three charges. He stipulated to being a habitual offender and received a sentence of five-to-fifteen years to serve. On appeal, defendant argues that: (1) the evidence was insufficient to convict him of burglary or possession of burglary tools; (2) the trial court committed plain error by failing to instruct the jury that, to convict him of possessing burglary tools, they must find that the tools were adapted and designed for a burglarious purpose; and (3) it was plain error, in violation of his right not to be placed in double jeopardy for the same conduct, for the trial court to submit to the jury both the unlawful trespass and the burglary charges.
The standard of review regarding defendant's claim of insufficiency of the evidence is well-settled. In determining whether the State presented sufficient evidence to support a jury verdict, we view the State's evidence most favorably to the prosecution and " determine whether that evidence sufficiently and fairly supports a finding of guilt beyond a reasonable doubt." State v. Albarelli, 2011 VT 24, ¶ 17, 189 Vt. 293, 19 A.3d 130 (quotation omitted). Questions of credibility raised by the evidence at trial are entirely within the province of the jury, and thus the trial court may grant " a judgment of acquittal only if the State fails to offer any evidence to substantiate a jury verdict." State v. Hammond, 2012 VT 48, ¶ 14, 192 Vt. 48, 54 A.3d 151 (quotation omitted). But " evidence that gives rise to mere suspicion of guilt or leaves guilt uncertain or dependent on conjecture is insufficient" to support a conviction. Albarelli, 189 Vt. 293, 2011 VT 24, ¶ 17, 19 A.3d 130 (quotation omitted).
Defendant first contends that, with respect to the burglary conviction, the evidence was insufficient for the jury to find either that he entered the building or that he intended to commit larceny. We disagree. The State presented the following evidence at trial pointing to defendant's guilt. Police observed defendant at approximately five o'clock in the morning bicycling away from the area where the burglary occurred. Police also observed bicycle tire tracks on the other side of a hedgerow separating that area from the adjoining property where defendant was seen riding away. Those tire tracks appeared to match the knobby tire tracks on the bicycle defendant was riding. In his interview with police after he was given his Miranda rights, defendant made several statements that the jury could have considered incriminating in nature. At one point during the interview, even though he had previously denied being at the scene of the crime, defendant essentially admitted his presence that morning at the door where the alarm was triggered. He told the interviewing officer that the door was open, that the padlock was already off and hanging from the door, but claimed that he " didn't go all the way in." When the officer reminded him that they found him covered in cobwebs and that the stairwell inside the door was full of cobwebs, he responded that he was just covered in leaves from riding his bike.
At another point during the interview, he stated: " Maybe my intentions weren't good." He followed up this statement with these comments:
Maybe I did . . . you know what I mean? Maybe I did and maybe I do want to talk to you, maybe I don't really want to lose my kids, maybe I just f up. . . . [O]k, it could have been worse . . . my intentions weren't good to be out tonight, I was up to shady business.
He also told the officer that there was no purpose in going in any door, but " my intentions would be if I was to go in through the door then I would probably be trying to . . . rob something." He then proceeded to downplay his actions, stating that " if I took something, . . . I would . . . see that you know that I f up." He explained: " It could have been worse though, I could have done something really bad. I could have . . . really burglarized somewhere, I could have really robbed somewhere. What if people [were] in the . . . building, you know what I mean? That's occupied. I'm . . . screwed?" When the officer encouraged him to admit what he had done and told him that he had not said anything yet, defendant stated: " Well, I tried to put my . . . foot in my own mouth of course I'm not gonna . . . screw myself . . . . I got a lot to lose." One of the officers also testified that during processing, after the interview had been completed, defendant stated that he really wanted to tell the officer what he had done but was ...