Appeal from Superior Court, Bennington Unit, Criminal
Division February Term, 2016
A. Howard, J. Alexander Burke, Bennington County Deputy
State's Attorney, Bennington, for Plaintiff-Appellee.
Timothy M. Andrews and David F. Silver of Barr, Sternberg,
Moss, Lawrence, Silver & Munson, P.C., Bennington, for
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. Defendant appeals from his conviction by jury of
aggravated assault with a deadly weapon and disorderly
conduct. Defendant was acquitted of reckless endangerment.
Defendant was charged with these crimes after allegedly
pointing a shotgun at and threatening to shoot two men who
were repossessing a vehicle from a tenant parking lot on his
property. Defendant admitted confronting the men with a gun,
but steadfastly denied pointing it at them or threatening to
shoot them. Defendant argues on appeal that the court
committed plain error by failing to sua sponte instruct the
jury on self-defense, defense-of-others, and
defense-of-property. He maintains that the court compounded
its error through its instruction on repossession of
collateral. We find no plain error, and affirm.
2. Defendant's claims of error require a detailed review
of the evidence presented at trial. The incident giving rise
to these charges transpired on May 17, 2014, on
defendant's property in Bennington, Vermont. The property
is located across the street from the police station, and it
is bisected by two public roads. Defendant lives on the
property with his brother, Peter Buckley. Defendant owns a
residential rental apartment building adjacent to his house.
There is a parking lot near the house that is used by the
apartment building tenants. Around 5:00 a.m. on the morning
in question, two employees of a repossession company located
a car that was the subject of their repossession efforts
parked in the parking lot on defendant's
property.The lot was no more than ten to fifteen
feet off of the public road. The car in question belonged to
a woman who was visiting one of defendant's tenants.
Defendant knew of this woman, knew that she was a guest of
his tenant, and knew that it was her car in the lot.
3. After verifying that both the license plate and the VIN
number matched the car they were seeking to repossess, the
employees backed their flatbed truck toward the car and
hooked it with a cable in preparation to tow it away. One
employee was in the driver's seat while the other hooked
up the car. The noise of the truck woke Peter, who went
outside to investigate. The employee who was outside
testified that Peter was very loud, and that despite
informing Peter why they were there, Peter told them to get
off his property. Peter, by contrast, described himself as
calm, and claimed that the employee was belligerent and
swearing at him. Peter said that he "started to back
himself into a log pile" as the employee was
"coming at [him]." Peter testified that he
interacted only with this employee.
4. Sometime during the encounter between the employees and
Peter, defendant testified that he woke to loud voices
outside his home using language he felt was abusive and
threatening. He looked out the window and claimed to see two
men, unknown to him, advancing toward his brother. He heard
his brother tell the men they needed to unhook the car and
leave the property. Defendant grabbed his shotgun, which he
claimed was unloaded, went outside, and stood next to Peter.
Peter testified that at that point the employees were at
least twenty to twenty-five-feet away. Defendant similarly
testified that the employees were twenty feet away when he
arrived on the scene, and he stated that immediately after
seeing his gun, the employees "retreated back" to a
position forty-five feet away. Defendant knew that the
employees were not armed.
5. Not surprisingly, the testimony at trial differed
considerably about what happened next. The employee who
hooked up the car testified that defendant was fifteen feet
away from him, and he held a shotgun in the "ready"
position with the butt of the gun in his shoulder pocket. He
testified that defendant pointed the gun in the "general
direction" of himself and the other employee. The
employees were standing on either side of the flatbed truck
at that point. The employee also testified that defendant
screamed at them multiple times that if they did not unhook
the car he would shoot them. The shotgun remained pointed at
them during a stand-off lasting between one and five minutes.
Ultimately, the employee went to the tow truck and called the
police. When the employee got off the phone, defendant and
the shotgun were gone. The employee then unhooked the cable
from the car, moved the tow truck into the parking lot and
waited for the police to arrive.
6. Peter claimed to feel threatened because one employee was
swearing and walked toward him. Nonetheless, he testified
that he was calm when defendant exited the house, and
defendant similarly testified that Peter was interacting with
the employees in a "business-like" manner.
Defendant stated that when he came outside with a gun, this
stopped the employees from advancing toward him and Peter. As
indicated, defendant testified that the men were twenty feet
away when he emerged from the house, and that they moved back
to forty-five feet away. Defendant and Peter denied that
defendant ever pointed the shotgun at the employees and
stated instead that defendant had pointed it into the air for
the duration of the encounter. They denied that defendant
repeatedly threatened to shoot the repossession employees.
According to defendant and Peter, they repeatedly told the
men they were trespassing and eventually, the men were
persuaded to leave.
7. Two of defendant's tenants also testified that
defendant did not point the shotgun at the repossession men
or threaten to shoot them. One tenant claimed to have been
standing by defendant's side during the encounter with
the employees, although police did not observe her at the
scene, and defendant did not mention her presence to police.
8. The question of whether the employees were privileged to
be on the property arose at trial. The employee who hooked up
the car testified, based on his training and experience, to
his understanding of what repossession agents were allowed to
do. Peter also testified to his understanding of what was
9. At the close of the evidence, the court discussed its
proposed jury instructions with counsel and asked the parties
for any objections. The court explained in detail how it had
crafted its instruction regarding a person's ability to
repossess collateral, such as a vehicle. It discussed the
case law it had reviewed on this issue, and it also discussed
trespass and defense-of-property issues. The court expressed
to the parties that a person has a reasonable right to deal
with intrusions but also must use a reasonable degree of
force, and noted that these were questions for the jury.
While the State made numerous proposals in response to the
court's proposed instructions, defendant raised no
10. The court instructed the jury in relevant part as
In determining intent, you may consider all of the
surrounding circumstances and facts established by the
evidence. A secured party may try to take possession of
collateral such as a vehicle without judicial process if it
can be done without breach of the peace. A breach of peace is
an action that causes or is likely to cause an immediate
disturbance or loss of public order. It must be reasonably
likely and not merely a remote possibility.
Merely going on someone's land or trespassing to
repossess a vehicle is not a breach of peace alone. Whether
actions do rise to a breach of peace allowing the owner of
the land to defend his ownership depends on the accompanying
circumstances of each case. [There are] [a] number of factors
. . . you may weigh. These include whether the manner [in
which] it was done created a potential for immediate violence
and the nature of the premises intruded upon. This can depend
on the time of day, the closeness to a dwelling, whether the
property is secluded or not, notice or lack of notice,
whether the property is owned by the debtor or a third-party
and whether the third-party had notice of the debtor's
situation, [and] did anything have to be moved or broken such
as gates or doors to enter the location.
Even if there is a breach of peace as you find it, defendant
must still act reasonably and use only reasonable degree of
force in defending against it. You must determine from all
the circumstances as you find they happened, if any actions
you find defendant did were ...