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State v. Joseph

Supreme Court of Vermont

June 9, 2017

State of Vermont
v.
Jeremy T. Joseph

         Supreme Court On Appeal from Superior Court, Bennington Unit, Criminal Division February Term, 2017 David A. Howard, J.

          Alexander Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellant.

          Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellee.

          PRESENT Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          SKOGLUND, J.

         ¶ 1. The State appeals the superior court's conclusion that the enactment of 13 V.S.A. § 3606a repealed 13 V.S.A. § 2504 by implication. Because § 3606a neither demonstrates a plain intent to repeal § 2504 nor covers the subject matter of § 2504, we reverse.

         ¶ 2. The resolution of this appeal requires this Court to compare two statutes. The first statute-13 V.S.A. § 2504-states the following:

A person who by a trespass with intent to steal, takes and carries away anything of value which is parcel of the realty, or annexed thereto, and the property of another against his or her will, shall be imprisoned not more than 10 years or fined not more than $500.00, or both.

         This Court previously determined that the phrase "parcel of the realty" in § 2504 includes trees and timber. State v. Dragon, 133 Vt. 620, 623, 349 A.2d 720, 722 (1975).

         ¶ 3. Enter defendant. On May 26, 2015, the State charged defendant with violating § 2504 based on allegations that defendant, while cutting down trees with the property owner's authorization, strayed onto the property of three neighbors and cut down trees on their property without authorization.

         ¶ 4. In May 2016, while defendant's trial was pending, the Legislature enacted the second statute at issue in this case-13 V.S.A. § 3606a. See 2015, No. 106 (Adj. Sess.), § 1. Section 3606a reads, in part, "No person shall knowingly or recklessly: . . . cut down, fell, destroy, remove, injure, damage, or carry away any timber or forest products placed or growing for any use or purpose whatsoever . . . ." Id. § 3606a(a)(1). A person who violates § 3606a may be imprisoned for one year and fined up to $20, 000 for the first offense and, for subsequent offenses, imprisoned not more than two years and fined up to $50, 000. Id. § 3606a(b).

         ¶ 5. In response to § 3606a's enactment, the superior court entered an order on August 12, 2016, that requested the State and defendant submit memoranda analyzing whether § 3606a's enactment superseded § 2504.

         ¶ 6. In its memorandum, the State argued that § 3606a did not repeal § 2504 by implication because the statutes could be read in harmony. By contrast, defendant argued that he should be charged under § 3606a instead of § 2504 because the new statute was a more specific statute that should govern over the general language of § 2504.

         ¶ 7. The superior court agreed with defendant. On September 2, 2016, the superior court ruled that § 3606a repealed § 2504 by implication with respect to trees and timber and ordered the State to file an amended charge or the case would be dismissed. In its holding, the superior court relied, in part, on its conclusion that the phrase "by trespass" in § 2504 was the same act as "taking and carrying away" and that "the trespass is accomplished by the taking and carrying away and does not require a separate act of going onto someone's land in a conventional trespass." Similarly, the court concluded that the distinct mens rea elements in the two statutes did not make a difference because the Legislature's intent with the enactment of § 3606a was to broaden the requisite intent to include "recklessness" and eliminate the defense of "carelessness or reckless disregard of boundaries." Because § 3606a covered the subject matter of § 2504 and expanded the mens rea of § 2504, the court concluded that § 3606a repealed § 2504 by implication, ...


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