Volume 166 — Vermont Reports

<bold>1. Environment and Natural Resources — Environmental Protection</bold> <bold>— Permits</bold> <block_quote> Where an original permit authorized significant residential development for a tract of land within a development but set aside 22 acres to be preserved for agricultural uses, the application for a permit to build a single-family home with an attached stable on the set-aside land was not consistent with preserving the lot for agricultural uses and to allow such development would have been in violation of the original permit. <cross_reference>10 V.S.A. § 6086</cross_reference>.</block_quote> <bold>2. Judgments — Collateral Estoppel — Limits</bold> <block_quote> The doctrine of collateral estoppel, or issue preclusion, applies when a party seeks to relitigate a factual or legal issue previously decided in a judicial or administrative proceeding, and the effect of collateral estoppel is that resolution of a specific issue is given the same preclusive effect as the final judgment of the court or agency; however, permits to allow development are not final or unalterable since a party subject to an amendment may seek to amend the conditions and a board will sometimes grant the amendment, and since they are not final judgments, the doctrine of collateral estoppel is not applicable to the modification of such a permit. <cross_reference>10 V.S.A. § 6086</cross_reference>.</block_quote> <bold>3. Environment and Natural Resources — Environmental Protection</bold> <bold>— Permits</bold> <block_quote> The District Commission and neighboring landowners of a 22 acre lot reasonably relied upon the original permit condition restricting development of the lot and preserving it for agricultural use when they chose to live in the neighborhood, and applicants for amending the permit had benefitted from the commission's and landowners' reliance, and it was this reliance that weighed strongly against granting the permit amendment which would have allowed residential development of the lot. <cross_reference>10 V.S.A. § 6086</cross_reference>.</block_quote>

<bold>1. Judgments — Judgment Notwithstanding Verdict — Standard for</bold> <bold>Granting</bold> <block_quote> In considering a motion for a directed verdict or judgment notwithstanding the verdict, the evidence must be evaluated in the light most favorable to the nonmoving party, excluding the effect of any modifying evidence. The grant of the motion is improper if there is any evidence that fairly and reasonably supports the nonmoving party's claim.</block_quote> <bold>2. Negligence — Duty — Particular Cases</bold> <block_quote> In a personal injury suit against the designer of a machine which allegedly injured plaintiff when she stood upon an unsafe milk crate for access to a part of the machine, the designer was not guilty of negligence as a matter of law. While defendant designed the machine with no method of access by a short person, like plaintiff, to the part in question, plainitff's employer added the milk crate, creating a dangerous condition, and defendant never saw the milk crate in use and never was aware of its use.</block_quote> <bold>3. Labor — Respondeat Superior — Loaned Servants</bold> <block_quote> Ordinarily, the question of whether one is the borrowed servant of another is one of fact, to be determined based upon analysis of a number of factors: (1) The borrowed servant must be subject to the direction of the temporary employer as to the details of such act; (2) In the absence of evidence to the contrary, there is an inference that the actor remains in his general employment; and (3) The fact that the employee has the skill of a specialist indicates a continuance of the general employment.</block_quote> <bold>4. Appeal and Error — Preservation of Questions — Failure to</bold> <bold>Make Specific Objections</bold> <block_quote> A blanket reference made after the charge to arguments made before the<page_number>Page 99</page_number> charge, even if allowed by the trial court, does not comply with rule providing that "[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." V.R.C.P. 51(b).</block_quote> <bold>5. Trial — Civil Cases — Jury Instructions — Wording</bold> <block_quote> In charging the jury, the court is required to include every material point raised by the evidence. Nevertheless, the court has discretion to select its own language. A charge is correct if, taken as a whole, it breathes the true spirit of the law and does not mislead the jury.</block_quote> <bold>6. Trial — Civil Cases — Jury Instructions — Wording</bold> <block_quote> In a personal injury action, although plaintiffs contended that the court erred in failing to instruct the jury that the right of control of a special employer must extend to the "means and methods" of employment, the wording of the charge was within the court's discretion and did not mislead the jury. The court's summary of the issue, although not using the term "means and methods," certainly conveyed the concept that the right of control had to involve all aspects of the work.</block_quote> <bold>7. Appeal and Error — Preservation of Questions — Grounds for</bold> <bold>Objection</bold> <block_quote> Where plaintiffs failed to submit proposed instructions on certain issues, and never objected on these grounds at the charge conference or after the charge was delivered, the questions were not preserved on appeal and were not considered.</block_quote>

<bold>1. Judgments — Summary Judgment — Appellate Review</bold> <block_quote> The appellate court reviews a motion for summary judgment using the same standard as the trial court: Summary judgment is appropriate only when the moving party has demonstrated that there are no genuine issues of material fact and it is entitled to judgment as a matter of law. In determining whether material facts exist for trial, all reasonable doubts are resolved in favor of the party opposing summary judgment. V.R.C.P. 56(c)(3).</block_quote> <bold>2. Banking — Deposits — Right to Setoff</bold> <block_quote> In general, a bank has the right to seize deposited funds to reduce or eliminate debts owed to it by the depositor. The right to setoff does not turn on the question of ownership of the funds, but derives from the contractual relationship between the depositor and the bank in that, by placing funds in an ordinary account, a depositor gives the bank legal title to them, and, absent a specific agreement to the contrary, becomes the bank's creditor up to the amount of the deposit. As<page_number>Page 222</page_number> titleholder, the bank has the right to apply the depositor's money to extinguish a matured preexisting debt without direction or authority from the customer, including the right to set off without seeking the permission of the signatories on the account.</block_quote> <bold>3. Banking — Deposits — Right to Setoff</bold> <block_quote> The right of a bank to set off deposited funds to reduce or eliminate debts of the depositor is not absolute. If a bank knows that a deposit is owned by a third party and not by the depositor, the bank may not set off the funds, and the same is true if the bank knows of circumstances that give it a duty to inquire about ownership. The majority rule, however, is that a bank that has neither actual nor constructive knowledge of a third party's interest in a deposit is entitled to set off the funds.</block_quote>

<bold>1. Appeal and Error — Evidence — Tests and Standards</bold> <block_quote> A conviction will be affirmed if the evidence, when viewed in the light most favorable to the State, fairly and reasonably supports the finding of guilt beyond<page_number>Page 241</page_number> a reasonable doubt. The test is the same whether the evidence is direct or circumstantial.</block_quote> <bold>2. Offenses — Particular Crimes — Stolen Property</bold> <block_quote> Defendant, charged with possession of stolen pipe, offered conflicting statements about where he obtained the pipe and how long the pipe was in his possession: (1) He answered questions about the pipe in terms of pounds instead of length; (2) He surreptitiously borrowed a chop saw during the same period that the pipe was in his possession; and (3) He appeared nervous at the time he sold the pipe. Although defendant was not required to explain his possession of the pipe, his explanation, shown to be contrived and false, was properly taken as evidence of guilty knowledge. <cross_reference>13 V.S.A. § 2561</cross_reference>.</block_quote> <bold>3. Criminal Law — Judgment and Sentence — Restitution</bold> <block_quote> To support a restitution order, the State must establish both the amount of the victim's loss and causation between the defendant's acts and the victim's loss. <cross_reference>13 V.S.A. § 7043</cross_reference>(a).</block_quote> <bold>4. Criminal Law — Judgment and Sentence — Restitution</bold> <block_quote> A restitution order may not include amounts resulting from conduct on which the defendant was acquitted, or conduct that was not covered by the defendant's conviction. <cross_reference>13 V.S.A. § 7043</cross_reference>(a).</block_quote> <bold>5. Criminal Law — Judgment and Sentence — Restitution</bold> <block_quote> Trial court properly awarded restitution beyond the amount contained in the misdemeanor charge of which defendant was convicted. The Legislature did not intend to limit damages based on the dollar amount in the charge against a defendant, the restitution statute being based on the principle of compensation to the victim, rather than punishment of the defendant. Also, at sentencing, matters need be proven only by a preponderance of the evidence, and thus, it was not inconsistent that the State could not prove the higher value in the criminal trial, but could during sentencing. <cross_reference>13 V.S.A. § 7043</cross_reference>(a), (b)(2); V.R.Cr.P. 32(c)(4).</block_quote> <bold>6. Criminal Law — Judgment and Sentence — Restitution</bold> <block_quote> The trial court has discretion in determining the amount of restitution, and only a reasonable certainty of estimated loss is required. <cross_reference>13 V.S.A. § 7043</cross_reference>(a).</block_quote>

<bold>1. Criminal Law — Confrontation of Witnesses — Hearsay Evidence</bold> <block_quote> <italic>Bruton v. United States,</italic> <cross_reference>391 U.S. 123</cross_reference> (1968), was not controlling where a state's witness related a nontestifying accomplice's hearsay statement implicating defendant as an accomplice in a murder and the accomplice's statement was not allowed into evidence for any purpose. U.S. Const. amend. <cross_reference>V</cross_reference>.</block_quote> <bold>2. Criminal Law — Confrontation of Witnesses — Hearsay Evidence</bold> <block_quote> In ruling on whether curative instruction was sufficient to cure any prejudice, the court had to evaluate the demeanor of the witness, the content of the stricken testimony, its likely impact, and the probable effect of cautionary instructions swiftly and firmly administered. Because these were necessarily matters of degree calling for the court's judgment, its ruling would be reversed only for an abuse of discretion. U.S. Const. amend. <cross_reference>V</cross_reference>.</block_quote> <bold>3. Criminal Law — Confrontation of Witnesses — Hearsay Evidence</bold> <block_quote> In determining the prejudicial impact of an incriminating hearsay statement by a nontestifying accomplice in a murder prosecution, the probative force of the statement had to be compared with the admissible evidence that supported the verdict. U.S. Const. amend. <cross_reference>V</cross_reference>.</block_quote> <bold>4. Evidence — Relevance — Prejudice</bold> <block_quote> In a murder prosecution, the court did not abuse its discretion by allowing the jury to view a short videotape showing the gravesite and the exhumation of the victim's body, the State offering the tape, which was edited to keep out the most graphic views of the body, to demonstrate the joint undertaking necessary for defendant and his accomplice to lift the body and the large stones that covered the grave. The tape had probative value to show the continuing complicity between<page_number>Page 519</page_number> defendant and his accomplice from the time they planned their escape from prison until the time they were apprehended, which probative value was not substantially outweighed by the danger of unfair prejudice. V.R.E. 403.</block_quote> <bold>5. Criminal Law — Judgment and Sentence — Resentencing</bold> <block_quote> Although conviction for unlawful mischief was vacated, the case was not remanded for resentencing because it was absolutely clear from the sentencing court's remarks that the five-to-six-month sentence imposed for that conviction had no effect on the length of any of the other sentences imposed by the court.</block_quote> <bold>6. Homicide — Sentence — Aggravating Circumstances</bold> <block_quote> In a prosecution for murder, the court did not err in finding as an aggravating factor that the murder was committed while defendant was "in custody under sentence of imprisonment" although he was an escaped prisoner. Section 2303(d)(1) is intended as an additional deterrent to homicide by persons less likely to be deterred by the prospect of further confinement and applies not only to prisoners committing murder within the confines of prison walls, but applies with equal if not greater force to escapees, who face an even longer term of imprisonment after apprehension and whose conduct demonstrates the need for greater deterrence. <cross_reference>13 V.S.A. § 2303</cross_reference>(d)(1).</block_quote> <bold>7. Statutes — Maxims and Rules of Construction — Avoidance of</bold> <bold>Absurd or Unjust Results</bold> <block_quote> A rule of statutory construction will not be applied in a way that is inconsistent with legislative intent or that creates absurd or irrational results.</block_quote>