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
PRESENT Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
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the enactment of 13 V.S.A. § 3606a repealed 13 V.S.A.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.
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
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
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3606a's enactment superseded § 2504.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