Roof not Required

Structure? 

State v. Lampman, 2017 VT 114

By Elizabeth Kruska

Any time I see a last name ending with “-man” I tend to think that person might be some sort of superhero, like Spider-Man or Superman. I don’t know Mr. Lampman, but I immediately envisioned him like this: all dark clothing* with red gloves, and an emblem of an old-timey gas lantern on his chest that has a yellow glow around it. And obviously there’s a cape, because I suspect nobody gets into the superhero business without the promise of a cape.

Superhero Interviewer: “You’ll bring lightness to the world.”
Potential Superhero: “Do I get a cape?”
Superhero Interviewer: “No, sorry, our cape budget is maxed out.”
Potential Superhero: “You know, I have a degree in electrical engineering. I don’t need this nonsense.” *storms out*

(*Anyone able to tell me why superheroes always wear tights? Can’t someone be super in, say, a pair of Levi’s and a hoodie? I’m wearing a hoodie right now with a big outline of the state of Michigan on the front, and I gotta say, it’s comfy and I feel pretty super. Also, as an expatriated Michigander and Wolverine, I am duty bound to add, “Go Blue!”)

Anyway, it appears that Lampman in this case has a completely different superpower, which is stealing building materials from partially constructed structures.

I rather like the argument in this case, which was that the burglary, as charged, couldn’t really be a burglary because the structure from which the building materials were stolen wasn’t fully a structure yet, since it was still being built. I also really adore that run-on sentence, and I’m keeping it. So there.

Mr. Lampman got caught, basically red-handed, stealing building materials from a partially constructed building. A person was across the street, basically minding his own biscuits, when he heard a ruckus across the street. He moved from where he was, hid behind a tree, and saw Mr. Lampman and another person driving away in an SUV with the building materials. There was an explanation about moving the materials closer to a porta potty (I have no idea why; I can only assume he’s got some large-scale game of Angry Birds going on), and then eventually Mr. Lampman admitted he was stealing.

So, the case went to trial, and the defense was a clever one—yeah, Lampman stole, but he didn’t enter a structure to do it, so he can’t be convicted of a burglary. He moved for a judgment of acquittal at the close of the state’s case (as we defenders tend to do), and argued that the State hadn’t proven the “enter a structure” element of burglary. The trial court said, “Meh, it’s a structure,” and gave a jury instruction that said, essentially, “it’s a structure, even if it’s not all the way built yet.” The jury, despite Lampman’s heroic arguments to the contrary, agreed with the court and found him guilty. He appeals, which is why I’m writing about this.

On appeal, Lampman makes an argument that without a roof, it’s not a structure. This is clever. SCOV perhaps agrees with the cleverness, but as a matter of law disagrees.

Listen. Here’s the thing. A “structure” is defined in the American Heritage College Dictionary as “something made up of a number of parts that are held or put together in a particular way.” I’d have liked it if they used Merriam-Webster, but maybe SCOV doesn’t want to get political in these fractious times. Also, maybe the closest available dictionary was the American Heritage College Dictionary that maybe a justice or law clerk got as a gift, and gets used a few times a year but the rest of the time serves as a good surface to get the Christmas cactus a little closer to the window.

Anyway, nothing in any definition ever says there has to be a roof in order to be a structure.

Lampman also argued that the whole point of burglary, starting at common law, was to protect people’s homes from being broken into and, well, burgled. SCOV agrees, and points out that our burglary statute punishes burgling an occupied dwelling much more severely than other kinds of structures. Other states also recognize that the point is to protect structures from “unauthorized intrusions.” SCOV says this can include partially completed buildings, and that it was A-OK for the judge to instruct the jury that way.

Lampman also argues the evidence was insufficient. SCOV disagrees with that, also. The project manager for the building testified that the building materials in question were stored in an inner stairwell. It would get stored inside so the elements wouldn’t ruin it if stored outside. He testified that this is what this company does with regularity, and everyone working there would know that. Even though Lampman tried to argue the materials were outdoors when he took them, that seems improbable. SCOV points out that the evidence below was sufficient for the jury to find Mr. Lampman guilty.