In re K.B.

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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-546


In re K.B., Juvenile                         Supreme Court

                                             On Appeal from
                                             District Court of Vermont,
                                             Unit No. 2, Addison Circuit

                                             September Term, 1990



Linda Levitt, J.

Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant Attorney
   General, Montpelier, for plaintiff-appellee

Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate
   Defender, Montpelier, for defendant-appellant



PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     MORSE, J.   K.B. appeals an adjudication that he was a juvenile
delinquent based on an unlawful trespass.  We affirm.
     Under 13 V.S.A. { 3705(a)(1),
           A person shall be imprisoned for not more than three
         months or fined not more than $500.00, or both, if,
         without legal authority or the consent of the person in
         lawful possession, he enters or remains on any land or
         in any place as to which notice against trespass is
         given by . . . [a]ctual communication by the person in
         lawful possession . . . .

The juvenile court found that on the morning of May 27, 1989, K.B. went to a
service station owned and operated by Harley Muzzy to look at a wrecked car
owned by K.B.'s friend.  Muzzy asked K.B. to stay away from the car, and
K.B. left.  Later, K.B. returned and, upon being told again by Muzzy to stay
away from the car, K.B. threatened Muzzy, who then called the police.  K.B
left the area only to return once again, this time with his friend who owned
the car.  K.B. told Muzzy in effect that Muzzy could not stop him from
being here.  The police were called again, and K.B. was charged with
unlawful trespass.  The court concluded K.B. was guilty of that offense
"because Mr. Muzzy did give notice to [K.B.] not to be in the area of the
cars.  After he was told to leave, he left and then came back again and
again was in the same area around the cars." 
      K.B. testified he returned to Muzzy's only once, with his friend who
owned the wrecked car.  Muzzy testified K.B. returned twice, the version
accepted by the court.  K.B. argues that the court's failure to specify
which return constituted the offense violated the rule set forth in State v.
Corliss, 149 Vt. 100, 102-03, 539 A.2d 557, 559 (1987) (state must elect
which act it will rely on for conviction when evidence at trial refects two
or more criminal acts and defendant is charged with only one count).  The
Corliss rule is predicated on the danger "that some jurors will convict
based upon evidence of one act while the balance of the jury will convict
upon evidence submitted for other acts."  Id. at 102, 539 A.2d  at 559.
Because the trial judge sat as the lone trier of fact, that danger cannot be
present here.  Moreover, there was no reason to fear that the trier of fact
may have accumulated the number of times K.B. returned to find beyond a
reasonable doubt he returned at least once.  The fact that K.B returned at
least once was not disputed.  We fail to see how K.B. was prejudiced by the
absence of an election.
     Next, K.B. faults the court for not making a finding that he was at
Muzzy's "without legal authority," an element of unlawful trespass.
Although he failed to ask the trial court for special findings, V.R.Cr.P.
23(c), K.B. correctly asserts that the court is nonethless required to make
findings in juvenile delinquency proceedings, 33 V.S.A. { 5526.  See In re
M.C.P., 153 Vt. ___, 571 A.2d 627, 636 n.6. (1989)(in a CHINS proceeding,
party need not request findings -- a request that would ordinarily be
required in a civil proceeding under V.R.C.P. 52(a) -- because 33 V.S.A. {
654 (now { 5526) already mandates them).  Moreover, those findings must be
more than a conclusory statement that defendant is delinquent.  In re R.B.,
134 Vt. 368, 369, 360 A.2d 77, 78 (1976).  However, the purpose of findings
is to afford this Court with "an opportunity to review the evidence to
determine if it supports the ultimate findings."  Id.  In order to create
such a record for review, the trial court need not make findings on an
element not disputed at trial, and nothing in the statute, the rule, or the
case law requires it to do so.
     K.B.'s defense was based on the unreasonableness of Muzzy's insistence
that K.B. stay away from K.B.'s friend's car and that he leave the premises.
At no point did K.B. put in issue whether the State had proved he had no
legal authority to be on Muzzy's premises.  Moreover, we know of no
authority supporting K.B.'s argument on appeal that his status as a friend
of the car's owner, who accompanied that friend to assist him in retrieving
personal property, gave him legal authority to be on the premises.  To the
contrary, even if K.B. had lawful authority to enter Muzzy's premises, which
were open for business to the public, he was divested of it by Muzzy's
request that he leave.  See, e.g., Rager v. McCloskey, 305 N.Y. 75, 79, 111 N.E.2d 214, 216-17 (1953) (trespass consists not only of unauthorized entry
but also of refusal to leave once permission to remain has been withdrawn);
see also Restatement (Second) of Torts { 198 (1965)(one is privileged to
enter another's land to reclaim one's chattel only if it initially came to
be on the land without one's consent).
     Affirmed.


                                             FOR THE COURT:



                                             _____________________________
                                             Associate Justice