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State v. Pixley

Supreme Court of Vermont

October 12, 2018

State of Vermont
v.
Victor L. Pixley

          On Appeal from Superior Court, Chittenden Unit, Criminal Division David Fenster, J.

          Franklin L. Paulino, Chittenden County Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

          Matthew F. Valerio, Defender General, and Sarah Star, Appellate Defender, Montpelier, for Defendant-Appellant.

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

          REIBER, C.J.

         ¶ 1. Defendant appeals a conviction for unlawful trespass following a jury trial. On appeal, defendant argues that the court's instruction on the notice element of the trespass charge amounted to plain error. We affirm.

         ¶ 2. Defendant was charged with unlawful trespass in violation of 13 V.S.A. § 3705(a) after he was found in an unoccupied farmhouse. The State introduced the following evidence at trial. A trustee of the property testified that she was trying to sell the property and it was currently vacant. She stated that she had posted no-trespass signs on the property because it was not safe, and there were signs on the door, in the driveway, and on the barn. She also stated that there was a light above the front door directed at the posted sign. She further explained that the doors and windows had been boarded up. She stated that on the day in question she passed by and noticed a truck that she did not recognize so she notified police. She stated that she did not know defendant and that he did not have permission to enter the property. The investigating police officer testified that when he went to the property, he saw yellow posted-private-property signs along the roadway and on the main door of the house. When he went inside, he found two men inside the house, one of whom was defendant.

         ¶ 3. Defendant testified that he is homeless, and he and his friend entered the property looking for a place to sleep. He stated that he entered the property at night and did not see any signs noticing against trespass. Defendant stated that he does not read so he would not have understood the signs in any event. In closing arguments, defendant admitted to entering the land and going into the farmhouse, but he argued that he was not provided with meaningful notice against trespass.

         ¶ 4. The court discussed the jury instructions with counsel, including the instruction regarding notice. Defense counsel suggested some language and after some changes, both sides agreed to the language as revised. The court charged the jury, instructing it on the elements of trespass as follows:

That on April 25th, of 2017, at South Burlington, 1, [defendant], 2, entered a place specifically [the house address]. 3, that he did so either-that he did so without either legal authority or the consent of the person in lawful possession. And 4, that [defendant] had received notice against trespass, specifically in this case by signs or placards so designated and situated as to give reasonable notice.

         The court then explained each element in more detail. The final element the court described in the following manner:

The last element is that [defendant] had received notice against trespass, such notice may be proven through signs or placards so designed and situated as to give reasonable notice. That is, [defendant] received notice that he was not allowed to enter or remain on the premises. Even if there is no evidence that [defendant] received actual notice against trespass by means of direct communication, you may find that he received notice against trespass if the owner, or the owner's agent, posted signs or placards that were designated and situated in a manner that provided reasonable notice.
Here the State alleges that the owner provided [defendant] with notice against trespass by signs indicating that trespassers would be prosecuted.

         ¶ 5. Neither side objected to the instructions after they were read. ...


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