NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2021 VT 52
No. 2019-237
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Rutland Unit,
Criminal Division
Roy H. Kuhlmann June Term, 2020
Thomas A. Zonay, J.
Rosemary Kennedy, Rutland County State’s Attorney, and Daron L. Raleigh and L. Raymond
Sun, Deputy State’s Attorneys, Rutland, for Plaintiff-Appellee.
Matthew Valerio, Defender General, Joshua S. O’Hara, Appellate Defender, Montpelier, and
Roy H. Kuhlmann, Pro Se, Newport, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. EATON, J. Defendant appeals his convictions by a jury of unlawful trespass of
an occupied dwelling, obstruction of justice, and unlawful restraint. The unlawful-trespass and
obstruction-of-justice charges were based on defendant’s acts of entering complainant’s residence,
hiding under her bed to listen to her telephone calls, emerging from under the bed and frightening
her, and then, when the state police later arrived, urging her to tell them that nothing was wrong.
Defendant argues that there was insufficient evidence to support a conviction for trespassing
because he had permission to enter the complainant’s house. He claims that his statements in the
presence of police were not threatening and were therefore insufficient to support the obstruction-
of-justice charge. Finally, defendant challenges his conviction for unlawful restraint, which was
based on an altercation that took place three months earlier during which he pushed the
complainant onto her bed and held her down for five minutes. He contends that the restraint was
merely incidental to the assault that preceded it and cannot support a separate conviction. We
affirm the unlawful-restraint conviction, but reverse defendant’s convictions for unlawful trespass
and obstruction of justice because we agree that they are not supported by the record.
¶ 2. The State presented the following evidence at trial. Defendant and the complainant
met through an online dating website in the spring of 2017. The complainant lived in Ira, Vermont,
and defendant lived in upstate New York. During the early part of their relationship, the
complainant traveled to New York to spend weekends with defendant. Later, she would travel to
New York and bring defendant back to Vermont to stay in her home for several days at a time.
¶ 3. The complainant testified that as their relationship progressed, defendant became
jealous and controlling. He told her that he had been cheated on before, that he had done “bad
stuff” to his former girlfriends like “slapp[ing] them around” and pointing a gun at one of them,
and that if he ever found her with someone, he would kill her and that person. In November 2017,
while defendant was staying at the complainant’s house, the two had an argument after the
complainant noticed that defendant was talking to an ex-girlfriend. Defendant became upset and
shoved the complainant down onto a bed. He then climbed on top of her and held her down on
the bed for five minutes. While he was holding her down, he was yelling so loudly that spit came
out of his mouth. When he eventually released her, she rolled off the bed, and he struck her hard
on her buttocks. She testified she had handprint bruises on her forearms as a result of defendant
pinning her to the bed, and that her buttocks hurt for several weeks afterward. The complainant
drove defendant back to New York the next day. She obtained a relief-from-abuse order against
defendant, which she later agreed to have dismissed.
¶ 4. Defendant subsequently apologized to the complainant and told her that he was
seeking counseling. She agreed to resume their relationship. Defendant began staying at her house
2
for multiple nights in a row. He typically remained in the house while the complainant was at work
and had access to everything in the house. He did not have his own key to her house, but she
allowed him to use a key that she kept on the headboard so he could get back in when he hitchhiked
to the store. She testified that he did not have permission to go into her house without her
knowledge. The complainant admitted during cross-examination that defendant came and went as
he pleased when he stayed at her house, using the key to gain entry. She agreed that defendant
had permission to be at her house when she was not there.
¶ 5. On February 22, 2018, the complainant dropped defendant off at the local Jiffy
Mart on her way to work, with the understanding that he planned to hitchhike back to her house.
He had been staying with her for about a week and had the key that she kept on her headboard in
his possession. Around noon, however, defendant sent the complainant a text message stating that
he was hitchhiking back to New York. He continued to text her throughout the day regarding his
ostensible progress, finally stating that he was back at his camper and planned to go to sleep.
¶ 6. The complainant returned home after work that evening and entered the house,
which was locked. She found a note on her bed from defendant stating that he had done the
laundry, brought in wood, and left the key on the headboard. She sat on the bed and made some
phone calls. After she hung up, defendant came out from underneath her bed. The complainant
was terrified and ran toward the door. Defendant told her, “it’s me,” and the complainant stopped
running. She asked him why he was hiding under the bed. He told her that he needed to see if she
was going to bring someone else home after work. She called her daughter, who called the police.
¶ 7. The complainant testified that when the police arrived, defendant asked her to not
open the door. She did so anyway, and defendant hid behind the door. The complainant indicated
where he was to the police and ran outside. Defendant then came out and spoke with one of the
officers. The complainant stated that defendant said to her, “Tell the troopers that nothing’s going
on, everything’s okay. He loved me, not to do this, why was I doing this to him.” The troopers
3
subsequently arrested defendant and he was charged with unlawful trespass of an occupied
dwelling, obstruction of justice, unlawful restraint, and three counts of domestic assault—two for
pushing the complainant down on the bed and striking her buttocks in November 2017, and a third
for putting her in fear of imminent serious bodily injury by emerging from under the bed in
February 2018.
¶ 8. After the State presented testimony from the complainant, her children, and the
responding officers, defendant moved for judgment of acquittal on the unlawful-trespass and
obstruction-of-justice charges.1 The trial court denied defendant’s motion. Defendant then
testified. He said that he had caught the complainant sharing nude photos with other men on her
iPad. He asked her to stop. He testified that he held the complainant on the bed in November
2017 because she had punched him in the chest, and that “it wasn’t . . . as bad as it sounded.”
Regarding the February 2018 incident, he explained that he believed the complainant was cheating
on him and came up with the plan to hide under the bed so he could figure out who it was. He
denied hurting women or that he had pointed a gun at an ex-girlfriend.
¶ 9. The jury found defendant guilty of all the charges except for the domestic-assault
charge that was based on his allegedly hitting the complainant’s buttocks in November 2017. The
court subsequently sentenced defendant to serve, concurrently, two-and-a-half-to-three years for
unlawful trespass, two-and-a-half-to-four years for obstruction of justice, and fifteen-to-eighteen
months for the February 2018 domestic assault. It also sentenced defendant to serve, concurrently,
fifteen-to-eighteen months for the November 2017 domestic assault and two-and-a-half-to-four
years for unlawful restraint. It ordered that the two sets of sentences be served consecutively to
each other, resulting in an aggregate sentence of five-to-eight years to serve. This appeal followed.
1
Prior to trial, defendant unsuccessfully moved to dismiss the unlawful-restraint charge.
He did not renew this motion at trial.
4
I. Unlawful Trespass
¶ 10. On appeal, defendant first argues that the trial court erred in denying his motion for
judgment of acquittal on the unlawful-trespass charge because there was insufficient evidence to
show that defendant knew he did not have permission to enter the dwelling. We agree that the
record does not support this conviction, and reverse.
¶ 11. Defendant was charged with violating 13 V.S.A. § 3705(d), which provides: “A
person who enters a dwelling house, whether or not a person is actually present, knowing that he
or she is not licensed or privileged to do so shall be imprisoned for not more than three years or
fined not more than $2,000.00, or both.” Defendant moved for judgment of acquittal after the
State finished presenting its evidence, arguing that the record showed he had permission to enter
the dwelling. The State admitted that defendant had permission to be in the complainant’s home
at times, but argued that by communicating to the complainant that he had left for New York,
defendant “knew his license or privilege to be in the home had ended.” The trial court noted that
the statute criminalizes entry into a dwelling, not remaining. However, it concluded that the jury
could reasonably find that defendant did not have permission to enter the home for the purpose of
hiding under the complainant’s bed.
¶ 12. When reviewing the denial of a motion for judgment of acquittal, we examine
“whether the evidence, when viewed in the light most favorable to the State and excluding any
modifying evidence, fairly and reasonably tends to convince a reasonable trier of fact that the
defendant is guilty beyond a reasonable doubt.” State v. Delisle, 162 Vt. 293, 307, 648 A.2d 632,
641 (1994) (quotation and alterations omitted). Because the jury is best positioned to weigh the
facts, the court should grant a judgment of acquittal “only when there is no evidence to support a
guilty verdict.” State v. Cameron, 2016 VT 134, ¶ 5, 204 Vt. 52, 163 A.3d 545. The issue before
us therefore is “whether sufficient evidence was disclosed to prove beyond a reasonable doubt that
5
defendant entered [the complainant’s] residence knowing that he was not licensed or privileged to
do so.” State v. Fanger, 164 Vt. 48, 51-52, 665 A.2d 36, 37 (1995) (emphasis omitted).
¶ 13. In State v. Fanger, we explained that the knowledge requirement in § 3705(d) is a
subjective standard that “excludes from criminal liability both the inadvertent trespasser and the
trespasser who believes that he has received express or implied permission to enter or remain on
the premises.” Id. at 52, 665 A.2d at 38. Thus, “[i]t is not sufficient for the State to show that
defendant should have known he was not licensed or privileged to enter the dwelling.” Id. In
Fanger, we held that there was sufficient evidence to support a property manager’s unlawful-
trespass conviction after he forced his way into a tenant’s apartment for the purpose of evicting
her and her husband. Id. at 53-54, 665 A.2d at 38-39. The property manager told the police that
he believed he had the right to enter the apartment to make sure the heat was on in that apartment
and other apartments in the building. We stated that because the knowledge element of trespass
was subjective, his ignorance of the law could be a defense. Id. at 53, 665 A.2d at 38. However,
the tenant testified that the property manager’s only acts upon entering were to disconnect the heat,
electricity, and hot water in the apartment where she was staying, and that he said nothing about
protecting the other apartments and made clear he was there to evict her. This inconsistency, along
with the violent manner in which the property manager entered the apartment, created a reasonable
inference that he knew he lacked permission to enter. Id. at 53-54, 665 A.2d at 38-39.
¶ 14. The facts of this case differ significantly from Fanger. As the State conceded
below, defendant generally had permission to be in the complainant’s house when she was not
there. At the time of the February incident, he had been staying with her for about a week, using
her key to enter and exit the house when she was away at work. Although the complainant testified
that defendant did not have permission to go into the house without her knowledge, the evidence
showed that defendant knew he had permission to enter the house on the day in question.
Specifically, the complainant testified that she dropped defendant off at the Jiffy Mart with the
6
expectation that he would hitchhike back to her house and use her spare key to get inside. She
agreed that if she had come home and he had been making dinner, it would have been a normal
day. There is no dispute that when the complainant dropped him off, defendant would have
understood that he had permission to return and enter her home.
¶ 15. The State argues on appeal that defendant only had conditional permission to be in
the house and that his conscious misrepresentation about his purpose for being in the house
rendered the permission ineffective. According to the State, the jury could have inferred from the
messages defendant sent to the complainant over the course of the day and the complainant’s
testimony regarding defendant’s jealousy and suspicion of her infidelity that defendant had
formulated his plan to hide under her bed at the time he entered the house. The State argues that
the jury could infer that, even if defendant had permission to be in the complainant’s home, he
knew he did not have permission to be there for the purpose of hiding under her bed and frightening
her.
¶ 16. The State’s argument is based on the Restatement of Torts, which states that “[a]
conditional or restricted consent to enter land creates a privilege to do so only in so far as the
condition or restriction is complied with.” Restatement (Second) of Torts § 168 (1965). The
Restatement also provides that consent induced by a conscious misrepresentation regarding the
purpose for which admittance to land is sought is not effective. See id. § 892B (consent induced
by misrepresentation not effective); id. § 173 cmt. b (“A conscious misrepresentation as to the
purpose for which admittance to the land is sought, may be a fraudulent misrepresentation of a
material fact.”). The State urges us to adopt the Restatement approach in the context of our
criminal-trespass statute.
¶ 17. We need not decide whether the cited tort principles apply to the criminal-trespass
statute because even if they did, the evidence does not support the State’s theory. First, although
the complainant testified that defendant did not have permission to be in the house without her
7
knowledge, there is no evidence that she conditioned or restricted her consent for defendant to
enter the house on February 22 or any other day. Rather, the evidence was that she left him at the
store with her key so he could return to the house. The complainant testified that defendant
typically stayed at her house while she was at work and had access to everything in the house.
There was no evidence that she gave him permission to be in the house only for a specific purpose,
as one might for a delivery person or a plumber.
¶ 18. The trial court ruled that the jury could find that defendant had permission to enter
the complainant’s house, but not for the purpose of deceiving the complainant regarding his
continued presence there, and that his deceitful intent at the time of entry vitiated her consent. This
theory relies on the assumption that the complainant would not have consented to defendant’s
presence under these circumstances. Absent any testimony to support that assumption, this theory
is too attenuated to support the trespassing conviction.
¶ 19. The State’s theory also fails because, as it conceded below, it is not possible to tell
from the evidence precisely when defendant entered the house or formulated his ruse. In other
words, there is nothing to show that defendant consciously misrepresented to the complainant his
purpose for entering the house. Although the State argues that defendant was suspicious and
jealous throughout his relationship with the complainant, this is an insufficient basis for the jury
to infer that at the time defendant entered the house, he knew he did not have permission to be
there. It is entirely possible that he came up with his plan after he entered, while he was doing
laundry and stacking wood for the complainant. This case is therefore unlike Fanger, in which the
defendant’s contemporaneous statements to the tenant and forcible entry created a reasonable
inference that he knew he was entering without permission. 164 Vt. at 53-54, 665 A.2d at 38-39.
¶ 20. Moreover, even assuming that defendant’s subsequent misrepresentations about his
whereabouts effectively revoked the complainant’s consent to his presence in the house, as the
State suggested below, our unlawful-trespass statute does not criminalize remaining in a house
8
without permission—only entry. See 13 V.S.A. § 3705(d) (“A person who enters a dwelling
house, whether or not a person is actually present, knowing that he or she is not licensed or
privileged to do so shall be imprisoned for not more than three years or fined not more than
$2,000.00, or both.”).2 Without evidence that defendant subjectively knew at the time he entered
the house that he did not have permission to be there, the State cannot support the conviction and
it must be reversed.
II. Obstruction of Justice
¶ 21. We turn next to defendant’s claim that he was wrongfully convicted of obstruction
of justice. Defendant was charged with violating 13 V.S.A. § 3015, which provides in relevant
part: “Whoever . . . corruptly or by threats or force or by any threatening letter or communication,
obstructs or impedes, or endeavors to obstruct or impede the due administration of justice, shall be
imprisoned not more than five years or fined not more than $5,000.00, or both.” Specifically, the
State charged that defendant endeavored by threatening communication to obstruct the due
administration of justice when he told the complainant to tell the troopers that nothing was wrong.
¶ 22. Defendant’s primary argument on appeal is that his statements to the complainant
did not constitute a “true threat,” as that term has been defined in the U.S. Supreme Court’s First
Amendment jurisprudence, and therefore cannot be punished without violating his right to freedom
of speech. Defendant also contends, as he did below, that the statements were not threats at all.
We agree with the latter argument and reverse on that basis.3
2
A separate provision of the statute makes it a crime to remain on land after receiving
actual notice against trespass. See 13 V.S.A. § 3705(a). The trial court properly rejected the
State’s request to instruct the jury that § 3705(a) was a lesser included offense of § 3705(d),
because the two crimes have different elements. The State conceded below that the evidence did
not support a charge under § 3705(a).
3
Our agreement with defendant’s contention that his words were not threatening should
not be construed as agreement with defendant’s broader claim that 13 V.S.A. § 3015 only applies
to “true threats” as defined in the First Amendment context. Cf. State v. Ashley, 161 Vt. 65, 71-
72, 632 A.2d 1368, 1372 (1993) (affirming obstruction-of-justice conviction based on defendant’s
threat to reveal information that would harm witness’s reputation and could result in her losing
9
¶ 23. The complainant testified that defendant said to her, “Tell the troopers that
nothing’s going on, everything’s okay. He loved me, not to do this, why was I doing this to him.”
No rational trier of fact could find that these statements constituted threatening communications,
because they conveyed no explicit or implicit threat of harm. Cf. United States v. Jackson, 974
F.2d 104, 106 (9th Cir. 1992) (“Where a defendant’s statements can be reasonably construed as a
threat, even if they are not made directly to the threatened person, the defendant has obstructed
justice.”).
¶ 24. In construing § 3015, our goal is to effectuate the Legislature’s intent as expressed
in the plain, ordinary meaning of the statutory language. See State v. Blake, 2017 VT 68, ¶ 8, 205
Vt. 265, 174 A.3d 126. Defendant was charged with endeavoring to obstruct justice by
“threatening communication.” 13 V.S.A. § 3015. Black’s Law Dictionary defines a threat as “[a]
communicated intent to inflict harm or loss on another or on another’s property.” Threat, Black’s
Law Dictionary (11th ed. 2019). Similarly, Merriam-Webster defines threat as “an expression of
intention to inflict evil, injury, or damage.” Threat, Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/threat [https://perma.cc/E5NV-86VC]. These
definitions make clear that while the allegedly threatening communication does not have to involve
physical force, it must express, either explicitly or implicitly, an intent to inflict harm. The harm
may be physical violence or some other form of retribution. For example, we have affirmed a
conviction for obstruction of justice based on a defendant’s threats to a witness that if his case
went to trial, he would disclose information that would cause her to lose custody of her daughter.
State v. Wiley, 2007 VT 13, ¶ 15, 181 Vt. 300, 917 A.2d 501; see also State v. Ashley, 161 Vt. 65,
custody of her daughter, even though statements did not promise physical harm or force). Because
we do not need to define what communications may be punished as obstruction of justice under
the First Amendment to resolve defendant’s appeal, we leave that issue to be decided in a more
appropriate case.
10
72, 632 A.2d 1368, 1372 (1993) (affirming obstruction-of-justice conviction based on similar
facts).
¶ 25. In this case, however, defendant’s comments cannot reasonably be viewed as
threatening, because they expressed no overt or implied intention to cause harm to defendant or
anyone else. Although the complainant testified when prompted by the State’s attorney that she
felt threatened by defendant’s request for her to tell the police everything was fine, she did not
explain why she interpreted these objectively neutral words to be a threat. Later, she agreed that
defendant had not threatened or harmed her that evening. While we recognize that seemingly
neutral words can imply threats, there was simply not enough evidence here for the jury to infer
that defendant’s statement implied an intent to cause harm. Cf. United States v. Bagdasarian, 652
F.3d 1113, 1119 (9th Cir. 2011) (reversing conviction under statute prohibiting threats to kill or
injure major presidential candidates because defendant’s statements on internet message board that
then-presidential-candidate Obama “will have a 50 cal in the head soon,” and urging others to
“shoot the [n-word],” conveyed no explicit or implicit threat that defendant intended to harm
Obama). The court therefore erred in denying defendant’s motion for judgment of acquittal on the
obstruction-of-justice charge. 4
III. Unlawful Restraint
¶ 26. Finally, defendant argues that the trial court erred by failing to acquit him of the
charge of unlawful restraint because the State did not establish that his act of holding the
complainant down on the bed for five minutes during their November 2017 altercation was a
4
Defendant also argues that the State failed to prove that he had the requisite mental state
to obstruct justice because his words did not have the capacity of obstructing justice. In State v.
Fucci, we declined to clarify the definition of the mental state required for this offense and left the
issue to be addressed in a more appropriate future case. See 2015 VT 39, ¶ 10, 198 Vt. 482, 117
A.3d 419 (explaining that “corruptly endeavor” is culpable state of mind for offense, but declining
to further define term because defendant’s admissions satisfied mens rea under any possible
standard). Likewise, because we conclude that defendant’s conviction must be reversed on the
basis that his statements were not threatening, we do not address the mens rea issue here.
11
separate offense from the act of pushing her down on the bed. Defendant did not move for
judgment of acquittal on this ground at trial or in a post-trial motion, and therefore we review for
plain error. “Plain error exists only in exceptional circumstances where a failure to recognize error
would result in a miscarriage of justice, or where there is glaring error so grave and serious that it
strikes at the very heart of the defendant’s constitutional rights.” State v. Pelican, 160 Vt. 536,
538, 632 A.2d 24, 26 (1993) (quotation omitted). To reverse for plain error, we must determine
that there is an error, the error is obvious, and the error affects substantial rights and results in
prejudice to defendant. State v. Yoh, 2006 VT 49A, ¶ 39, 180 Vt. 317, 910 A.2d 853.
¶ 27. In addressing defendant’s claim, “we are mindful not only of the plain error
standard, but also the standard applied to claims that the trial court erred by failing to sua sponte
move for acquittal on its own motion under V.R.Cr.P. 29(a).” State v. Erwin, 2011 VT 41, ¶ 17,
189 Vt. 502, 26 A.3d 1. That is, “a court should move for acquittal only when the record reveals
that the evidence is so tenuous that a conviction would be unconscionable.” Id. (quotation
omitted). The record here does not meet either standard.
¶ 28. Defendant was charged with knowingly restraining the complainant. See 13 V.S.A.
§ 2406(a)(3) (“A person commits the crime of unlawful restraint in the second degree if the person
. . . knowingly restrains another person.”). Restrain “means to restrict substantially the movement
of another person without the person’s consent or other lawful authority by,” among other things,
“confining the restrained person for a substantial period.” Id. § 2404(3)(C).
¶ 29. We have held that the test for determining whether a restraint may be charged as a
separate offense is “ ‘whether the confinement, movement, or detention was merely incidental to
the accompanying felony or whether it was significant enough, in and of itself, to warrant
independent prosecution.’ ” State v. Synnott, 2005 VT 19, ¶ 19, 178 Vt. 66, 872 A.2d 874 (quoting
State v. Goodhue, 2003 VT 85, ¶ 16, 175 Vt. 457, 833 A.2d 861). We consider several factors in
applying this test, including:
12
[W]hether evidence of the seizure, detention, or movement was or
was not inherent in the nature of the underlying crimes; whether the
crime was facilitated by the confinement; whether the movement or
confinement prevented the victim from summoning assistance;
whether the movement or detention lessened the defendant’s risk of
detection; and whether the movement or detention created a
significant danger or increased the victim’s risk of harm.
Goodhue, 2003 VT 85, ¶ 13. This inquiry is designed “ ‘to prevent gross distortion of lesser crimes
into a much more serious crime by excess of prosecutorial zeal.’ ” Id. ¶ 12 (quoting People v.
Miles, 245 N.E.2d 688, 695 (N.Y. 1969)).
¶ 30. In this case, the evidence was that defendant pushed the complainant down, then
pinned her to the bed for five minutes while he yelled at her. He was charged with assault for
pushing her down, and unlawful restraint for holding her on the bed. The confinement lasted
significantly longer than the brief period of restraint arising from the assault of pushing the
complainant down on the bed. See Synnott, 2005 VT 19, ¶ 20. And, unlike a case involving sexual
assault or robbery, defendant’s act of restraining the complainant was not inherent in the nature of
the assault. Cf. Goodhue, 2003 VT 85, ¶ 23 (concluding that movement of victim from kitchen to
bathroom floor did not exceed confinement or removal inherent in commission of crime of sexual
assault); State v. French, 139 Vt. 320, 321, 428 A.2d 1087, 1088 (1981) (recognizing general
principle that conviction for kidnapping and rape or robbery “will not stand where the detention
necessary to support the kidnapping conviction was quantitatively no greater than the detention
which is, by virtue of the nature of the crime, incidental to the underlying rape or robbery”). Nor
did the confinement facilitate the assault, which was completed at the time that defendant began
holding down the complainant. Defendant’s act increased the risk of harm to the complainant, as
evidenced by her testimony that she had bruises on her forearms where he held them down. Under
these circumstances, the confinement was significant enough to warrant independent prosecution.
The trial court therefore did not commit error, let alone plain error, in failing to acquit defendant
of unlawful restraint on its own motion.
13
¶ 31. Defendant also argues that the trial court should have instructed the jury that it had
to decide whether the restraint was incidental to the assault. Defendant did not object to the lack
of such an instruction at a charge conference or before the jury retired to consider its verdict, and
therefore did not preserve this argument for review. See State v. Gates, 2020 VT 21, ¶ 55, __ Vt.
__, 230 A.3d 595; V.R.Cr.P. 30(b). Accordingly, we review the instructions for plain error. State
v. Carter, 2017 VT 32, ¶ 6, 204 Vt. 383, 169 A.3d 225 (“Where there has been no objection to the
instruction in the trial court as required by Vermont Rule of Criminal Procedure Rule 30, we
review only for plain error.”). “There is no error if the jury charge as a whole conveys the true
spirit and doctrine of the law, and there is no fair ground to say the jury has been misled by it.”
State v. Streich, 163 Vt. 331, 352-53, 658 A.2d 38, 53 (1995) (quotation omitted).
¶ 32. We have reviewed the jury instructions, and they fairly reflect the law. As stated
above, to establish that defendant was guilty of unlawful restraint, the State had to prove that
defendant knowingly restrained the complainant for a substantial period. 13 V.S.A.
§§ 2404(3)(C), 2406(a)(3). Whether the restraint was independently significant from the
accompanying assaults was not an element of the crime, and we have never held or suggested that
this is an issue for the jury to decide. See State v. Pike, 143 Vt. 283, 289, 465 A.2d 1348, 1351
(1983) (“[T]he function of a jury is to be the finder of facts. A jury has no role in threshold
determinations of legal issues.”). Even if the independent significance of the confinement could
be a question for the jury in an appropriate case,5 “[t]he court is not required to instruct jurors on
5
Like Vermont, most states do not permit separate convictions for kidnapping or unlawful
restraint and another crime where the kidnapping or restraint was merely incidental to that other
crime. See Goodhue, 2003 VT 85, ¶ 16; State v. Teats, 468 S.W.3d 495, 504 n.13 (Tenn. 2015)
(collecting cases). Some jurisdictions view this as a factual question to be decided by the jury.
Teats, 468 S.W.3d at 504 (noting that Tennessee, some California courts, Connecticut, and Texas
use jury instruction to determine if kidnapping is incidental); see also Weber v. State, 547 A.2d
948, 959 (Del. 1988) (requiring trial judge to determine if facts could support determination that
kidnapping was independent of accompanying crime, and if so, to specifically instruct jury to find
that movement or restraint is independent and not incidental). Other jurisdictions have concluded
that whether a restraint is merely incidental to an accompanying crime is a question for the trial
court to decide. In State v. Warner, the Rhode Island Supreme Court concluded that because the
14
theories of defense that the defendant has not pursued.” State v. Buckley, 2016 VT 59, ¶ 21, 202
Vt. 371, 149 A.3d 928. Accordingly, we see no error.
¶ 33. In conclusion, we affirm defendant’s conviction of unlawful restraint and reverse
his convictions of unlawful trespass and obstruction of justice. Because the trial court imposed
separate sentences for each offense and the convictions and sentences for the reversed convictions
do not appear to have influenced the sentencing for the affirmed convictions, we do not remand
for resentencing. See State v. Simpson, 160 Vt. 220, 225, 627 A.2d 346, 350 (1993).
Defendant’s convictions of unlawful trespass and obstruction of justice are reversed. The
judgment is otherwise affirmed.
FOR THE COURT:
Associate Justice
requirement that a kidnapping be independently significant was a judicially created doctrine that
did not affect the elements of the crime, but simply added a legal barrier to the charging process,
its implementation was best left to the trial judge. 626 A.2d 205, 208 (R.I. 1993). Similarly, in
Hagins v. United States, the District of Columbia Court of Appeals ruled that the doctrine of
independent significance, “which acts as a check upon over-zealous use of th[e kidnapping]
charge,” was a matter of law for the court to decide. 639 A.2d 612, 617 (D.C. 1994). It explained,
“The jury’s function is to apply the statutory elements of the crime to the facts at hand, and ‘non-
coextensive’ (or ‘non-incidental’) confinement . . . is not such an element.” Id.
15