Monday, November 15, 2010

Criminal Procedure. Court affirms denial of suppression motion and validates seizure without cause by officer acting in private capacity

 State v. Young (2009-252) (29-Oct-2010) 2010 VT 97(Dooley, J.) 

Defendant Jason Young appeals from the denial of his motion to suppress evidence, obtained by a police officer after defendant drove into the driveway of the officer’s house.   

A little past ten o’clock on a mid-summer’s eve, after socializing with friends, defendant departed Barre in his pick-up truck to return to his home in Marshfield, triggering an improbably unlucky sequence of events. 

Shortly after defendant turned onto Plainfield Brook Road, a vehicle approached his truck from behind.  The vehicle was “approaching pretty rapidly,” so Defendant decided to take his next right onto Cassie Street, “assuming the vehicle would continue straight past.” 

Much to defendant’s dismay, the vehicle followed.  Defendant turned right at his next opportunity, this time pulling onto Valley View Circle.  Again, the vehicle followed. 

Defendant next began to search for an “available driveway to turn around in easily” and made his choice.  He pulled into the driveway, “assum[ing] the vehicle behind [him] would continue past.” 

It did not. 

Defendant testified to thinking that, “coincidentally, the person must live there.”  He was correct. 

What he did not realize at the time, however, was that the person who followed him and lived in the house was an off-duty police officer dressed in plain clothes.

Defendant put his truck in reverse and began to back out, but the vehicle pulled into the driveway, blocking defendant from exiting the driveway.  After blocking defendant in his driveway the officer observed that defendant “smelled strongly of alcohol, had bloodshot and watery eyes, and had slurred speech.” 

The trial court concluded that the officer was acting as a homeowner during this initial encounter, and not as a police officer, and thus, that no seizure occurred until the officer next ordered defendant out of his truck and requested that he perform the sobriety tests. 

We agree with the trial court that there was no seizure until the officer had grounds to do so.  We concur with the trial court’s conclusion that the officer was initially acting as a concerned homeowner, and not as a police officer, and that his conduct during the initial encounter therefore fell outside the scope of the Fourth Amendment.

Easement by prescription reversed and denied on appeal.



Defendants appeal from a decision holding that plaintiff possessed a twelve-foot-wide prescriptive easement for vehicular and pedestrian ingress and egress across defendants’ property. Because the record does not support the trial court’s conclusion that plaintiff currently has a prescriptive easement over defendants’ land, we reverse.

The most that plaintiff could have received by way of a prescriptive easement was the right to make use of the alley in particular ways, not the right granted by the trial court for general ingress and egress.

The “nature and scope” of the use of property during the prescriptive time period “establishe[s] the general outlines of the easement.”  Cmty. Feed Store, Inc., 151 Vt. at 158, 559 A.2d at 1071-72. “No use can be justified under a prescriptive easement unless it can fairly be regarded as within the range of the privileges asserted by the adverse user.”  Id. 151 Vt. at 157, 559 A.2d at 1071 (quotation omitted)

The main problem with the trial court’s decision is that it failed to recognize the limits that necessarily accompanied any prescriptive easement established by plaintiff’s predecessors.  The trial court granted plaintiff an unlimited prescriptive easement “for the purpose of general ingress and egress, both pedestrian and vehicular,” based upon evidence that, even when viewed in the light most favorable to the prevailing party below, established nothing more than intermittent use of the land for specific purposes— such as deliveries of fuel oil, occasional use of the back door by upstairs tenants, trash removal out the back door; etc.

With the exception of the deliveries of fuel oil, all of the uses listed above were not just intermittent, but were in fact so infrequent as to be insufficient to establish a prescriptive easement. Further, by “on-site abandoning” of the oil tank and encasing that tank in concrete , plaintiffs “conclusively and unequivocally” manifested an intent to abandon any prescriptive easement that might have existed for fuel deliveries.

Insurance coverage for sexual abuse by minor at a day care center, unless subjective intent to harm.

Northern Security Insurance Company, Inc. v. Stanhope et al. (2009-078) (08-Oct-2010) 2010 VT 92 (Burgess, J.)    

Northern Security Insurance Company (Northern), appeals from a superior court judgment that it owes a duty of coverage to Rose, Steven, and Kyle Perron, its insureds under a homeowner’s policy. We affirm.

The first appeal, Northern Sec. Ins. Co. v. Perron, 172 Vt. 204, 777 A.2d 151 (2001) (Northern I) held that the inferred intent rule was inapplicable to minors.  Id. at 226, 777 A.2d at 167.  The Court remanded the case to the trial court for a factual determination on whether Kyle intended or expected injury to occur, as well as a ruling on Northern’s additional claim that coverage was voided by Rose Perron’s alleged misrepresentations in her policy application

Northern first contends the trial court erred in applying the innocent co-insured doctrine to hold that Rose Perron’s misrepresentation did not void coverage for Steven or Kyle.  The court found that our decision in Fireman’s Fund Ins. Co. v. Knutsen, 132 Vt. 383, 324 A.2d 223 (1974) was controlling. We conclude that the trial court did not err in applying the innocent co-insured doctrine to preserve coverage for Steven and Kyle.

Northern next contends the trial court erred in declining to allocate to defendants the initial burden of proving an occurrence, defined under the policy as “an accident” neither expected or intended.  We considered and rejected the same claim in State v. CNA Ins. Cos., 172 Vt. 318, 331, 779 A.2d 662, 672 (2001). Accordingly, we find no error in the trial court’s decision to place the burden of proof on Northern to establish that the harm was “intended or expected”.

Northern finally claims that the trial court erred in rejecting its request for an instruction on the intentional-harm exclusion that would have incorporated an objective rather than a subjective standard.  The trial court had propounded an instruction explaining that “[w]hen we say expected in this context, what we mean is this:  Did Kyle know . . . that his sexual actions would harm Jesse and/or Gus.”  Northern proposed modifying the instruction to state as follows: “Did Kyle know or have reason to know that his actions” would cause harm.  (Emphasis added).  The trial court’s rejection of this request was correct.  An insured expects an injury if he or she is subjectively aware that injury is substantially certain to result.

This ruling did not prevent Northern from arguing that intent to harm could be inferred from all of the surrounding facts and circumstances, including evidence that Kyle knew the assaults were harmful and non-consensual.

Our  conclusion that a subjective standard governs whether a minor in these circumstances intended or expected harm to result has no impact on our earlier decisions holding that, when the perpetrator of the sexual assault or harassment is an adult, such intent must be inferred.