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| Lesser included fish. |
By: Elizabeth Kruska
Two opinions this week. SCOV is on fire with cranking out opinions lately. Let’s dive in.
First we’ve got a criminal opinion that touches on a few things. Briefly, the defendant was charged with and convicted of a count of lewd or lascivious conduct. He raised two points of error on appeal and SCOV rejected both of his arguments.
First, he tried to argue the court should have granted his motion for judgment of acquittal because there was insufficient evidence to support a conviction. This… this is a really hard argument to make. SCOV applies the same standard as at the trial court, which is whether, when taken in the light most favorable to the state, there is sufficient admissible evidence upon which a conviction could be sustained. Basically, this gets granted only if there is no evidence to support the conviction. The trial court found there was, and SCOV agreed. I’m not going to get into the nitty gritty of the evidence, but the trial court thought there was enough to go to the jury and that’s also enough for SCOV.
Second, the defendant raised an issue about jury instructions, and whether he should have been entitled to a lesser-included offense instruction. The trial court said no, and SCOV agreed. In short, to be a lesser-included offense, the lesser must have all the same elements as the greater. I think of lesser-included offenses like fish; the bigger fish has to be able to swallow the small fish whole. Here, the lesser offense proposed by the defendant could not be swallowed whole because it had different elements, so it was properly not given. There was also a long discussion about the fact the charge is actually lewd or lascivious conduct, but for some reason everyone calls it lewd and lascivious conduct. The state has to prove lewd or lascivious and doesn’t have to prove both.
SCOV affirms. Take a peek at State v. Lovejoy, 2026 VT 26.
Up next is affirmance of a summary judgment motion about a right of way. As we all know by now, summary judgment is appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
This starts with a road from 1796. (Insert audible sigh here.) The town of Chittenden apparently surveyed a property during the *checks notes* Washington Administration and laid out a particular road. It’s not clear if this road got used, but even if it did, it was apparently discontinued sometime around 1846. That’s ten presidents later, if you’re keeping track (and apparently I am). Zoom ahead 160 years to 2006, and the town and the then-landowners stipulated that the road wouldn’t be a road anymore, and that it would be designated as a trail. Trails and roads are different, and we’ve written about this before. Recently. The town then got to work on discontinuing use of the road.
A few years later, the property was sold, and the new landowners disputed a portion of the trail. Both parties moved for summary judgment and the town prevailed. The 2006 stipulation was a contract between the town and the landowners. The parties compromised; the town said it was a road, the landowners said it was private. They settled by agreeing there is a right of way, permitting public use as a trail for non-motorized recreational purposes. They also agreed the town could maintain the trail. By making this agreement, the parties engaged in some good ol’ common law dedication and acceptance, which is “the setting apart of land for public use.” SCOV found this is exactly what the parties did. There are some other arguments, including an equitable estoppel argument (which you know I adore and have written about before here and here) but SCOV didn’t need to reach that.
Read it all here in Gerlach and Gerlach v. Town of Chittenden, 2026 VT 25.
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