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State v. Lampman

Supreme Court of Vermont

December 8, 2017

State of Vermont
Francis L. Lampman

         On Appeal from Superior Court, Grand Isle Unit, Criminal Division, Thomas Z. Carlson, J.

          David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, Dawn Matthews, Appellate Defender, and Rebecca Blackmon, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          ROBINSON, J.

         ¶ 1. Defendant appeals his burglary conviction arising from his entering a partially constructed house to steal roofing materials. He argues that the trial court erred in instructing the jury on the definition of "building or structure" for the purposes of the burglary statute, and that the evidence was insufficient to prove that he entered a "building or structure." We affirm.

         ¶ 2. The State presented the following evidence in connection with the burglary and petit larceny charges against defendant. A witness who was praying at a shrine across the street from a construction site at 10:30 p.m. heard noise and decided to investigate. The witness snuck behind a tree on the construction site and saw someone, later identified as defendant, moving roofing material "back and forth" between the building under construction and a porta potty stationed next to the driveway. He did not see defendant actually enter the house. The witness called 911 to report what he saw. Moments later, a small, dark Sport Utility Vehicle (SUV) pulled in, and the witness observed two people load the material into the SUV and pull away.

         ¶ 3. Based on the witness's description, deputies with the Grand Isle Sheriff's Department caught the SUV soon after it left the site. The deputies saw multiple boxes of roofing material through the back windows of the vehicle. The deputies identified defendant as the passenger and his cousin as the driver. Defendant offered several different and incompatible explanations in close succession as to why he was on the site and what he had done. At one point, defendant told the officer that both he and his cousin pulled into the site together, noticed the material on a pallet right next to the porta potty, and simultaneously loaded the material into the vehicle. When confronted with the witness's statement that someone had been at the site moving the material before the vehicle pulled in, defendant then said his cousin had dropped him off and he had moved the material alone, but that he and his cousin eventually loaded the material into the vehicle together.

         ¶ 4. The construction site manager testified that when he was on-site the morning before the day of this incident, the house under construction had framed walls, with Tyvek wrapping on the exterior[1]; roof dormers, but not roof rafters; a constructed first and second floor; and window and door openings, but without glass in the windows or actual doors in the door openings.

         ¶ 5. The manager testified that when the roofing material was delivered two days before the theft, the crew was not ready to use it, so they placed it in the house's first-floor stairwell opening. The manager explained that the company had a policy-which all the employees knew of-to keep this material indoors because its adhesive gets ruined in direct sunlight. When the manager was on-site the day before the incident, the material was still located under the stairwell, and the manager did not tell anyone to remove it. He was confident that the material, which weighed at least forty to fifty pounds per package, was still under the stairwell on the night of the incident because, if left outside, it would have been in the way of the basket lift for the roof construction that was underway.

         ¶ 6. At the close of the State's case, defendant moved for judgment of acquittal on the burglary charge under Vermont Rule of Criminal Procedure 29, arguing that the State had presented insufficient evidence to prove that defendant actually entered the partially constructed house to take the roofing material. He also argued that the State had not established that the project constituted a "building or structure." The court denied his motion.

         ¶ 7. Defendant testified in his defense. He did not deny that he and his cousin went to the construction site to take roofing material. However, he testified that the roofing material that he and his cousin took was left on a pallet on the grass at the construction site, not within the building. Defendant maintained that he did not go inside the partially constructed house. He explained that he moved the material between two locations before loading it into the SUV because his cousin wanted it closer to the porta potty.

         ¶ 8. Throughout the proceedings before the trial court, defendant admitted to stealing the roofing materials, but denied the burglary charge. Before the start of the trial, defendant moved to dismiss the burglary charge, arguing that the partially completed house did not meet the definition of "building or structure" under Vermont's burglary statute, 13 V.S.A. § 1201. He contended that, for the purposes of § 1201, the structure needed to at least have completed framing, doors, windows, walls, and a roof. The trial court denied defendant's motion, holding that "the home, even though incomplete, qualifies as a 'building' or 'structure' within the common meaning of those words."

         ¶ 9. At the charge conference, defendant sought an instruction that defined building or structure "as a man-made enclosed space completed to the point where it is capable of being occupied or used as intended." The court rejected defendant's proposed instruction and gave this instruction ...

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