State v. Rogers ( 2003 )

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THE STATE OF SOUTH CAROLINA
THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Julian P. Rogers, Appellant.

Appeal From York County
Alison Renee Lee, Circuit Court Judge

Unpublished Opinion No. 2003-UP-335
Heard January 14, 2003 Filed May 15, 2003

AFFIRMED

Thomas F. McDow, of Rock Hill; for Appellant.

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Assistant Attorney General Melody J. Brown, all of Columbia; Solicitor Thomas E. Pope, of York; for Respondent.

HEARN, C.J.: Julian P. Rogers was convicted of malicious injury to personal property, greater than $1,000 but less than $5,000. He was sentenced to two years imprisonment, suspended upon the service of one year of probation and payment of $4,000 in restitution. On appeal, Rogers argues the trial judge erred by (1) denying his motion for a directed verdict because the State failed to prove his criminal intent; (2) refusing to allow Rogers to assert a claim of false imprisonment as a defense to his charges; (3) refusing Rogerss additional requested voir dire questions; and 4) limiting Rogerss closing argument to twenty minutes. We affirm.

FACTS

Rogers was hired to grade a tract of land for a development project. After three months of work, the contractor had not yet paid Rogers for his services. Accordingly, Rogers decided to retrieve his equipment from the worksite. [1] Rogers and his employee, Ricky Robinson, drove a large trailer to the jobsite and proceeded to load the grading equipment onto the trailer.

The contractors son, Scott Miktuk, lived near the jobsite and attempted to prevent Rogers from removing his equipment. Miktuk blocked the only exit on which Rogers could maneuver the large trailer by parking his pickup truck lengthwise across the road. Rogers repeatedly asked Miktuk to move the truck. Finally, after Miktuk refused, Rogers used a forklift to lift Miktuks truck out of the path of the trailer. Miktuks truck was damaged in the process.

Thereafter, Miktuk retrieved his truck and blocked the road a second time. He exited the vehicle and placed the keys in his pocket. A scuffle over the keys ensued involving Rogers, Robinson, and Miktuk. The police were summoned, but no arrests were made because the responding officer determined that the area was outside of his jurisdiction.

Miktuk later sought an arrest warrant, charging Rogers with assault and battery and malicious injury to personal property in excess of $1,000. Robinson was also charged with assault and battery. Before trial, an additional charge for malicious injury to personal property in excess of $5,000 was filed against Rogers. Rogers and Robinson were tried together. [2] Rogers was acquitted on the assault and battery charge and the charge for malicious injury to personal property in excess of $5,000. However, the jury found Rogers guilty of the lesser malicious injury to property charge. This appeal follows.

I. Denial of Directed Verdict

Rogers argues the State presented no evidence that he intentionally or willfully caused harm to Miktuks truck. Accordingly, Rogers claims the trial judge should have directed a verdict in his favor on the charge for malicious injury to property. See State v. Bryant, 316 S.C. 216, 447 S.E.2d 852 (1994) (finding the trial judge should have directed a verdict in favor of the defendant where there was no evidence he intended to damage the patrol car when he threw the officer into it). The State argues that because Rogers failed to address the intent issue at the close of his case, this specific issue is not preserved for appellate review. We agree with the State.

If a defendant presents evidence after the denial of his directed motion at the close of the States case, he must renew the directed verdict at the close of all evidence in order to preserve the challenge for appeal. State v. Parler, 217 S.C. 24, 58 S.E.2d 489 (1950); State v. Adams, 332 S.C. 139, 144, 504 S.E.2d 124, 127 (Ct. App. 1998). A party must state a specific ground for a directed verdict motion in order to preserve it for appellate review. Creech v. South Carolina Wildlife Marine Resources Dept., 328 S.C. 24, 34, 491 S.E.2d 571, 576 (1997).

At the close of the States case, Rogers moved for a directed verdict on the malicious injury to personal property charges arguing the State failed to present evidence to establish that he intended to damage the truck. Rogers separately moved for directed verdict as to the assault and battery charge, arguing that he had been falsely imprisoned by Miktuk and was therefore entitled to resist that unlawful detention. Because Robinson was also charged with assault and battery, he joined in arguing the men were entitled to resist the unlawful detention imposed by Miktuk. The trial judge denied each of the motions. Thereafter, Rogers and Robinson presented their defenses.

At the conclusion of the defendants cases, the trial judge heard several motions. First, the State moved to prevent counsel for Rogers and Robinson from arguing their theory of false imprisonment during closing arguments. The State also requested that the judge instruct the jury that it was not to consider any evidence of Rogerss claim of false imprisonment as a defense to his criminal charges. After hearing arguments, the trial judge granted the States motions. Immediately thereafter, counsel for Rogers moved for a mistrial arguing, this entire trial has been conducted upon the [defense] of false arrest and the right to resist a false arrest.

Before making a ruling on Rogerss motion for mistrial, the trial judge heard from counsel for Robinson, who stated, Your Honor, I would renew my motion for directed verdict that I made earlier on the same grounds, and I dont need to be heard further on that matter. Counsel for Rogers followed, stating, I assume there is no point in defendant Rogers moving for a directed verdict on the same ground in that the court has just in fact ruled on all of that as a matter of law. (emphasis added). The judge agreed and noted Rogerss position for the record.

The State argues that Rogers failed to raise the issue of intent at the close of all the evidence. This is a close question. For this issue to be preserved, Rogers must state with specificity the grounds for his renewed motion for directed verdict. Creech, 328 S.C. at 34, 491 S.E.2d at 576; see also Adams, 332 S.C. at 144, 504 S.E.2d at 127 (requiring a renewed motion for directed verdict if the defendant presents new evidence). Here, Rogers failed to renew his challenge on the specific issue of intent.

When addressing the trial judge, counsel for Rogers assumed, and the judge agreed, that it was futile for him to move for a directed verdict on the same ground on which counsel for Robinson had just moved because the judge had just ruled on that issue. That prior ruling concerned only the issue of false imprisonment. Moreover, Robinsons sole ground for his motion for directed verdict was that he and Rogers had been unlawfully detained. In light of these considerations, this colloquy was certainly sufficient to preserve Rogerss motion for directed verdict on the issue of the alleged false imprisonment, [3] but was not sufficient to preserve the separate issue of intent.

The lack of preservation on this issue lies in the realization that this argument was exclusive to Rogers as a defense to the charge for malicious injury to Miktuks truck. Importantly, Robinson was not charged with damaging the truck and, therefore, never raised the issue of intent to the trial judge. Instead, Robinson based his motion solely on the false imprisonment argument. When Rogers discussed the futility of renewing his directed verdict motion on the same ground as counsel for Robinson had just unsuccessfully done, he limited himself to preserving only those arguments raised by Robinson. Rogers thus failed to seek a renewed ruling on the issue of his intent to damage the truck. Accordingly, this issue is not preserved for our review.

II. Rogerss Defense of False Imprisonment

Rogers argues the trial judge erred in refusing to allow the jury to consider whether he was entitled to use force to free himself from the false imprisonment imposed on him by Miktuk. This is a novel question in South Carolina.

Rogers claims that he was falsely imprisoned when Miktuk blocked his exit from the jobsite by placing the truck across the only roadway on which the large trailer could be driven. [4] Rogers claims that because this detention was unlawful, he was justified in using force to free himself and, therefore, cannot be held responsible for incidental damage caused by his efforts to escape. The trial judge ruled as matter of law that the circumstances did not support a claim of false imprisonment. Moreover, the judge stated that because false imprisonment is civil remedy, it has no application in a criminal case. Accordingly, the trial judge refused to charge the jury on false imprisonment or false arrest, and ordered Rogers not to raise this theory during closing arguments.

At trial, Rogers asserted that he was unlawfully detained under both false arrest and false imprisonment theories. The trial judge noted that because Miktuk had witnessed Rogers damage his truck with the forklift, he may have been justified in detaining Rogers the second time he blocked Rogers from leaving in order to accomplish a citizens arrest. The determination of whether Miktuk had probable cause to arrest Rogers at that point is a question of fact for the jury to determine. Jones v. City of Columbia, 301 S.C. 62, 65, 389 S.E.2d 662, 663 (1990). Accordingly, whether Rogers was attempting to resist an unlawful arrest at the time of the ensuing assault and battery would depend on the jurys determination of whether Miktuk was justified in arresting Rogers. Id. at 64, 389 S.E.2d at 663 (An action for false imprisonment cannot be maintained where one is arrested by lawful authority.). Importantly, however, even if Rogers should have been allowed to argue his right to resist a false arrest, we hold any error was harmless. Rogers was acquitted of assault and battery, which is the only charge to which any allegation of false arrest applies.

We therefore believe the only relevant issue for determination is Rogerss claim that he is also entitled to reasonably resist a false imprisonment. It is undisputed that Rogers had committed no criminal act when Miktuk first blocked Rogerss exit. Thus, Rogerss detention immediately prior to his damaging Miktuks truck is more aptly characterized as false imprisonment, not false arrest. Because Rogers was convicted for this damage, his theory that one is entitled to resist false imprisonment without incurring criminal liability is the dispositive issue in the case.

A.   False imprisonment under these facts

To prove a claim of false imprisonment, the victim must establish, (1) the actor restrained him, (2) the restraint was intentional, (3) the restraint was unlawful. Jones v. Winn-Dixie Greenville, Inc., 318 S.C. 171, 175, 456 S.E.2d 429, 432 (1995). The tort of false imprisonment may be committed by words alone, or by acts alone or by both, and by merely operating on the will of the individual, or by personal violence[] . . . . Id. (emphasis added). Here, Miktuks efforts to detain Rogers were admittedly intentional. Furthermore, Miktuk had no legal justification for detaining Rogers because it is undisputed that the equipment belonged to Rogers. Accordingly, if Rogers was restrained, the restraint was unlawful because Rogers was committing no crime by removing his own equipment. See William H. Grimball, South Carolina Jurisprudence, False Imprisonment § 9 (To make a citizens arrest, one must act with good motives, i.e., bringing to justice a felon who had violated the law. He cannot have an ulterior motive such as the collection of money owed to him.). Thus, the only question is whether Rogers was restrained by Miktuk when he blocked Rogerss exit.

The trial judge ruled as a matter of law that Rogerss and Robinsons personal liberty was not restrained; therefore there could be no false imprisonment. Specifically, the trial judge stated, The fact that they chose not to walk ten miles to get away, they were not being restrained or prevented from [walking away] if they needed to get away and thats the clear issue here and as a matter of law Im ruling that they were not . . . restrained. The trial judge further explained that [Rogers] could have picked up and walked off. . . . He could not have left by the means by which he wanted to leave which was in his [trailer] with his equipment, but he could have left the scene.

Other jurisdictions have considered the specific issue of whether one may be restrained by the act of another exercising dominion over ones personal possessions. In National Bond and Investment Co. v. Whithorn, 123 S.W.2d 263 (1938), there was an attempt to repossess a car. The driver of the car opposed repossession by remaining in the car and applying the brakes as it was being towed away. The court found there was a jury question as to the issue of false imprisonment because the driver was not required to surrender possession of the vehicle and was entitled to assert his rights. South Carolina considered a similar case in Beraho v. S.C. State College, 302 S.C. 129, 394 S.E.2d 28 (Ct. App. 1990). In Beraho, the victims car was about to be towed away when the victim jumped into the vehicle and was towed away inside it. [5] This court held that, as a practical matter, the victim had imprisoned himself and was therefore barred from asserting his false imprisonment claim based on his consent to the detention.

We find Whithorn factually distinguishable from Beraho. In Beraho, the victim arrived at the scene and climbed into the car as it was about to be towed. In Whithorn, however, the victim was stopped on the road by the repossessors and remained in his car, continuously protesting the repossession, until the tow truck arrived and ultimately towed the victim and his car away. Thus, in Whithorn the victim and his car were detained together during the entire encounter. The only way for the victim to have obtained his personal freedom was to have surrendered possession of the vehicle. To the contrary, the victim in Beraho, was in no way restrained until he voluntarily restrained himself by climbing into the car as it was being towed.

In Burrow v. K-Mart Corporation, 166 Ga. App. 284, 304 S.E.2d 460 (1983), the Georgia Court of Appeals considered whether one may be detained by the act of another exercising dominion over ones personal possessions. Quoting Prosser, Law of Torts (4th Ed.) 45, § 11, the court recognized, A substantial number of cases in recent years have found false imprisonment where the plaintiff surrendered his freedom of motion because of force directed against his valuable property. Id. at 288, 304 S.E.2d 464. The court followed the reasoning in Whithorn and held that the exercise of dominion over the valuable possessions of a person is tantamount to exercising dominion over that person. The court stated:

The common thread running through these cases is that where one is deprived of ones property, he (or she) need not supinely surrender such possession but is in fact entitled (if not compelled) to remain until repossession is effectuated. Of course, one might always abandon such property but the need to protect ones own property acts as a coercive force in restraining one from leaving.

Id. at 289, 304 S.E.2d at 464-65.   The court found that the coercive effect of exercising dominion over the victims property was sufficient to establish a claim of false imprisonment due to acts which operate on the will of the person threatened and may result in a reasonable fear of personal difficulty. Id.

In Burrow, the victim was told that boxes she was carrying inside the store would have to be searched, and thereafter they were snatched from her hands. The victim could not leave the store in possession of her goods without having the boxes searched. Of course, the victim could have abandoned her goods and walked out of the store. However, the court reasoned it was for the jury to determine whether the words and acts by the defendant operated on the will of the plaintiff so as to restrain her. Id.

With respect to the factual issue of whether Rogers was restrained, we are inclined to agree with the reasoning in this line of cases. It is clear under South Carolina law, as in Georgia, that false imprisonment may be committed by words and acts which operate on the will of the victim. Jones, 318 S.C. at 175, 456 S.E.2d at 432. We believe that where an aggressor exercises dominion over the victims valuable property, thereby forcing the victim to abandon such property in order to obtain personal freedom, a reasonable jury could find the aggressors conduct operates on the will of the person, compelling the victim to remain until repossession is effectuated. This coercion over the will of the victim is sufficient to establish false imprisonment.

Generally, the blocking of a public highway will not result in false imprisonment. See Restatement 2d Torts, § 36 (stating one who blocks off a highway, intending to prevent the public from passing along it, is not liable for false imprisonment to one whose privilege to travel along that highway has been disrupted). However, we believe this general rule should not apply in this case. The example cited by the Restatement in support of this proposition involves the situation wherein the aggressor blocks a portion of a highway on which the victim is traveling, preventing the victim from passing through to the other side. Id., illustration 11. Significantly, the illustration expressly states that no object is placed in the way of the victim leaving by the way in which he came. Under these hypothetical facts, the Restatement holds, and we agree, that there is no imprisonment. However, in the present action, Rogers was unable to leave by the way in which he entered. The facts of this case suggest that the only means of exiting the jobsite with the trailer was along the road that Miktuk blocked. Accordingly, unlike the example cited by the Restatement, Rogers apparently had no means of escape other than removing the barricade that restrained him.

As previously noted, if Rogers was restrained, there is no question as to whether the restraint was unlawful and intentional. Based on the premise that Rogers need not obtain his personal freedom at the cost of abandoning his possessions, [6] there was sufficient evidence at trial to create a jury issue as to whether he was restrained by Miktuks actions. We do not agree with the trial judges conclusion that there was no imprisonment because Rogers was free to walk away from the jobsite. In this case, as in Burrow and Whithorn, the physical liberties of the victims were not restrained because the victims in these cases could have walked away from the scene. However, these authorities hold the victims are not required to obtain their physical liberty at the cost of leaving their possessions behind. [7] Accordingly, there was sufficient evidence upon which the jury could find that Rogers was intentionally and unlawfully detained.

B. False imprisonment as a defense to Rogers criminal charges

Although we find there was sufficient evidence to satisfy the elements of false imprisonment, we cannot reverse Rogerss conviction unless we find that false imprisonment is a viable defense to his criminal charges in South Carolina.

This case presents the issue in an unusual posture. Typically, one who is unlawfully detained will initiate a cause of action as a plaintiff. Here, however, Rogers argues that his right to free himself from false imprisonment constitutes an affirmative defense to criminal charges resulting from damages he caused in attempting his escape.

When ruling on Robinsons initial directed verdict motion, the trial judge entertained the notion that resisting a false arrest might be a defense for Robinson because Robinson had done nothing wrong prior to the scuffle that occurred after Miktuks second attempt to block the road. The court stated, [I]t becomes a jury question as to whether or not Mr. Robinson was in fact resisting what he perceived to be an unlawful detention or whether or not he was aiding [Rogers] in trying to obtain the keys so that they could leave the scene . . . . At the close of all evidence, however, the trial judge ruled that this theory could not be presented to the jury. The judge stated, There is no false arrest and there is no false imprisonment. False imprisonment is a civil remedy and its not applicable in a criminal case. (emphasis added). The trial judge further stated that under the laws and constitution of South Carolina, Rogers did not have the right to remove or to bother Miktuks personal property. The judge indicated Rogerss legal remedy for Miktuks interference with his ingress and egress was limited to obtaining a restraining order against Miktuks actions. In the alternative, the trial judge said Rogers should have notified the police to have the vehicle removed from the road.

We find no cases in South Carolina addressing whether the right to resist false imprisonment can be used as an affirmative defense to criminal charges. [8] Because this position has not heretofore been considered in this state, we analyze the merit of this assertion by comparing the doctrines of false imprisonment and false arrest.

There is little distinction between false arrest and false imprisonment. Both doctrines require the unlawful restraint of anothers personal liberty or freedom of movement. Thompson v. Smith, 289 S.C. 334, 337, 345 S.E.2d 500, 502 (Ct. App. 1986). [9] Cases involving false arrest typically involve the aggressors attempt to place under arrest one who is suspected of criminal wrongdoing. [10] False imprisonment, on the other hand, may arise where the victim is unlawfully detained despite there being no apparent justification for the detention. Claims for both false imprisonment and false arrest may arise from a single chain of events. See id.,   (considering false arrest claim based on a lack of probable cause to arrest the victim as well as false imprisonment claim for the period of time the victim remained incarcerated after police became aware of his innocence).

It is well settled in South Carolina that one may use such force as is reasonably necessary under the circumstances to resist a false arrest. State v. McGowan, 347 S.C. 618, 622, 557 S.E.2d 657, 659 (2001). Furthermore, the person resisting an unlawful arrest need not show the lack of opportunity for retreat or escape, but is entitled to stand his ground in an effort to repel the detention. State v. LaCoste, 347 S.C. 153, 165, 553 S.E.2d 464, 470 (Ct. App. 2001) (cert. dismissed, April 7, 2003). The court in McGowan stated: An unlawful arrest, or an attempt to make an unlawful arrest, stands on the same footing as any other nonfelonious assault[.] The person[,] . . . against whom such an unlawful attempt is directed, is not bound to yield, and may resist force with force[] . . . . McGowan, 347 S.C. at 623, 557 S.E.2d at 661 (quoting State v. Francis, 152 S.C. 17, 149 S.E. 348 (1929)).

These cases make it clear that the victim of a false arrest is entitled to use force to combat the detention, and therefore will incur no liability for harm to the aggressor that results from the victims reasonable use of such force. Logically extending this premise, where the victim is free from liability for injuring the aggressor, he should also be free from liability for damaging the aggressors property during the escape from an unlawful arrest. Cf. In re Albert S., 106 Md. App. 376, 399-400, 664 A.2d 476, 487 (1994) (finding the evidence failed to establish the defendant intended to maliciously damage the arresting officers microphone where the evidence also supported an inference that the defendant was merely attempting to escape from an unlawful arrest when he damaged the equipment). However, we find no authority extending ones right to resist an unlawful arrest to a civil claim of false imprisonment, thus entitling the victim to take reasonable measures to free himself from the false imprisonment without incurring civil or criminal liability. This issue has received extremely limited treatment from other jurisdictions as well.

In State v. May, 367 A.2d 672 (Vt. 1976), the Vermont Supreme Court considered an argument similar to the one before this court. May was convicted of unlawful mischief after he drove his car through a wooden gate on a private toll road. May argued the act of driving through the gate was a justifiable means of escape from an alleged false imprisonment. Although the court ultimately held that May failed to establish that he was in fact unlawfully detained, the court made no ruling as to applicability of the defense in general.

A more persuasive case was decided by the Georgia Court of Appeals. In Nolley v. State, 523 S.E.2d 579, 580 (Ga. App. 1999), the court considered whether a woman, who faced criminal prosecution for aggravated assault, was justified in stabbing a man because he was falsely imprisoning her at the time of the stabbing. The court reasoned that under the facts of the case, it was for the jury to decide whether the woman had made out her false imprisonment defense.   Because the woman made no effort to escape the confines of the trailer after stabbing the man, the jury reasoned that the stabbing did not occur as a result of her efforts to free herself. Nevertheless, the jury was allowed to consider whether the woman was attempting to free herself from a false imprisonment.

Although in Nolley, the issue was submitted to the jury, no South Carolina case recognizes this theory as a defense to criminal charges, and we decline to do so now. We hold the trial judge committed no error by refusing to allow the jury to consider false imprisonment as a defense to a criminal charge when that theory has never before been recognized as a defense in this State.

III. Proposed Voir Dire Questions

Rogers contends the trial judge erred in denying two of his proposed voir dire questions. We find this contention lacks merit.

The trial judge declined to accept two of Rogerss three proposed voir dire questions. The rejected questions were:

1.       Do you understand that the integrity of our jury system is dependent upon the honest [sic] of each of you as individual jurors? If your answer is yes, please stand.

2.       If, during your deliberations of this case, one of your fellow jurors attempted to discuss a point that I instructed you was not relevant to your deliberations in this case and that juror persisted to discuss that point after being reminded of my instructions, would you ask the foreman to report that fact to me. If your answer is yes, please stand.

The method and scope of voir dire are matters largely within the discretion of the trial judge. State v. Matthews, 291 S.C. 339, 342, 353 S.E.2d 444, 446-47 (1986); see also Norris v. Ferre, 315 S.C. 179, 181, 432 S.E.2d 491, 492 (Ct. App. 1993) (stating the trial judge maintains broad discretion in [the area of voir dire], and an appellate court will rarely second-guess his decision in this regard). The trial judge is not required to ask all of the submitted voir dire questions. Wall v. Keels, 331 S.C. 310, 318, 501 S.E.2d 754, 757 (Ct. App. 1998).

The trial judge examined the potential jurors for evidence of bias, opinion, or personal relationships. The two rejected voir dire questions did not concern matters of bias or prejudice that would impact on juror qualification. Rather, the proposed questions addressed the issue of jury deliberation, which is not required to empanel a fair, unbiased jury. We therefore find the trial judge was well within her discretion in rejecting the two proposed voir dire questions. Norris, 315 S.C. at 181, 432 S.E.2d at 492.

IV. Limitation of Closing Arguments

Rogers contends the trial judge erred in limiting his closing argument to twenty minutes. We find no abuse of discretion.

After the defense rested its case, the trial judge announced that closing arguments would be limited to fifteen minutes per party. Defense counsel objected, arguing that fifteen minutes would be an inadequate amount of time. The trial judge replied that Robinsons counsel could donate some of his time, and that she would let [Rogers] go over a few minutes but not very much. The trial judge clarified that a few minutes does not mean 5, 10, or 15.

The trial judge has discretion to limit the amount of time allotted for closing argument. State v. El, 286 S.C. 560, 561, 335 S.E.2d 544, 544-45 (1985). Once the trial judge removed the issue of false imprisonment from the case, the remaining issues were relatively straightforward. The jury took only twelve minutes to reach its verdict.

Furthermore, Rogers presents no evidence suggesting he was prejudiced by the limitation of his closing argument. See McKissick v. J.F. Cleckley & Co., 325 S.C. 327, 335, 479 S.E.2d 67, 71 (1996) (an appellant seeking reversal of a decision by the trial court must show both error and prejudice). The trial judge noted that Rogerss closing argument was approximately twenty-three minutes in length. We fail to see how Rogers was prejudiced by a limited closing argument, when he did not adhere to the confines of that limitation.

Certainly, the trial judge may not limit the defendants closing argument in such a manner that the defendants right to be fully heard is unfairly prejudiced. See S.C. Const. art. I, § 14 (granting the person charged the right to be fully heard in his or her defense). However, as Rogers has shown neither error nor prejudice from the trial judges ruling, we find the judge did not abuse her discretion in limiting the duration of Rogerss closing argument.

For the foregoing reasons, Rogerss conviction for malicious injury to personal property is

AFFIRMED.

CURETON, J., concurs.

ANDERSON, J., concurs in result only in a separate opinion

ANDERSON, J. (concurring in result ONLY in a separate opinion): I concur in result ONLY. I disagree with the reasoning and analysis of the majority. I agree with the ruling of the circuit judge: False imprisonment is a civil remedy and its not applicable in a criminal case.

To conflate a civil remedy and a criminal defense is troubling to me. The majority cites a plethora of CIVIL precedent relating to the civil theory of false imprisonment (false arrest). To hoist the civil theory to the point of a cognizable defense in the criminal law is legalistic misreckoning. I have major concernment with the discussion by the majority of these issues. I disagree with the language and verbiage of the majority. Concomitantly, I concur in result ONLY.

[1] The State does not dispute that Rogers was the lawful owner of the grading equipment.

[2] Robinson was acquitted.

[3] At the close of the States case, Rogers argued the issue of false imprisonment with respect to the assault and battery charge only. Initially, we were concerned that Rogers did not preserve this argument with respect to the malicious injury to personal property charge as well. However, in light of Rogers statement at the close of all evidence that the entire trial was conducted on this theory, we find the issue sufficiently preserved with respect to all charges against Rogers.

[4] There is some debate as to whether there were other exits at the jobsite. However, Rogers claims that due to the trailers size it would have been impossible to turn it around to reach those exits. Rogers backed the trailer down the road so he could pull forward out of the jobsite.

[5] The issue of whether the college in Beraho was acting unlawfully by towing his vehicle was not preserved on appeal.

[6] Even if a distinction could be drawn between possessions he arrived with as opposed to possessions he wished to retrieve, we note that at the time Miktuk initially blocked the road, Rogers could not have left with the trailer in which he arrived at the jobsite. In any event, we find no legal distinction between the trailer in which he arrived and the equipment he came to retrieve.

[7] We point out that in State v. May, 367 A.2d 672 (Vt. 1976), the court stated in dicta that the driver of the car could have walked away on foot. We decline to follow this reasoning in light of Burrow and Whithorn.

[8]    We note that Rogers presented absolutely no legal authority to the trial judge in support of the adoption of this novel defense. Though Rogers called an attorney as an expert witness on the issue, the expert likewise failed to provide any supporting authority.

[9] The concurrence suggests the majority relies on a plethora of CIVIL precedent relating to the validity of Rogers asserted defense. However, in the section of this opinion involving the issue of whether false imprisonment is a viable defense in a criminal action, Thompson v. Smith is the only civil case cited among a plethora of criminal cases. Moreover, Thompson is cited for the limited purpose of illustrating the similarity between the doctrines of false imprisonment and false arrest; it is not cited as support for Rogerss contention.

[10]    Often, the person making the arrest is a police officer, though the doctrine applies in incidences involving citizens arrest as well.

Document Info

Docket Number： 2003-UP-335

Filed Date： 5/15/2003

Precedential Status： Non-Precedential

Modified Date： 10/11/2024