State v. Johnstone, 75 A.3d 642

Background

Jason Johnstone was sentenced to a jail term with the balance suspended and placed on probation; Condition M prohibited "violent or threatening behavior."
Three months later his probation officer filed VOP complaints; after an arraignment the officer alleged Johnstone shouted at the courthouse and said she was "going to end up in a body bag."
The VOP complaint did not allege Johnstone meant the officer to hear the statement or knew she was within earshot.
Johnstone moved to dismiss the second VOP, relying on State v. Sanville that Condition M was too vague to proscribe "mouthy" expressions of displeasure; the motion was denied.
As part of a plea package Johnstone conditionally admitted the second VOP while reserving the right to appeal the trial court’s denial of his dismissal motion; the State did not object to that conditional plea.
The Supreme Court reviewed (de novo) whether the State alleged a prima facie VOP under Condition M and reversed the finding of violation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant’s courthouse statements made a prima facie violation of Condition M ("violent or threatening behavior")	The statements (including "you are going to end up in a body bag") were threatening and sufficient to show a VOP even if not expressly directed to the officer	Statements were "mouthy/," not directed to the officer, and Sanville shows Condition M is too vague to criminalize such speech absent clearer notice	Reversed: allegations did not establish prima facie VOP because no allegation defendant intended officer to hear or intended to put her in fear; Sanville controls as to notice vagueness
Whether a conditional plea preserved Johnstone’s right to appeal the denial of his dismissal motion	State (below) acquiesced; trial court repeatedly told defendant he could appeal	Johnstone contended his plea was involuntary if that assurance were incorrect	Held that the plea was conditional and the reservation to appeal the legal ruling was valid; appeal permitted
Whether verbal statements alone can constitute "threatening behavior" under Condition M	State suggested speech can be behavior and may violate Condition M when it conveys intent to harm	Defendant relied on Sanville and argued words alone ("blustering") do not suffice absent clearer notice	Court did not reach categorical rule whether words alone suffice here; instead reversed on notice/intent grounds (lack of allegation of intent to communicate threat)
Standard for reviewing denial of motion to dismiss VOP for lack of prima facie case	State: court should view evidence in light most favorable to State and deny dismissal if substantial admissible evidence exists	Defendant: Sanville and facts failed to give fair notice; dismissal required	Court applied V.R.Cr.P. 12(d)(2), reviewed legal question de novo, and found State’s allegations insufficient

Key Cases Cited

State v. Sanville, 189 Vt. 626 (Vt. 2011) (Condition M failed to give fair notice that "mouthy," "obnoxious" expressions would violate probation)
State v. Miles, 189 Vt. 564 (Vt. 2011) (verbal statements may require showing the statement conveyed intent to put another in fear)
State v. Ashley, 161 Vt. 65 (Vt. 1993) (discussion of threatening behavior as communicated intent to inflict harm)
State v. Byrne, 149 Vt. 224 (Vt. 1987) (plea agreements are contractual and interpreted by contract law)
State v. Parker, 155 Vt. 650 (Vt. 1990) (parties may rely on express terms of plea agreements)
United States v. Yasak, 884 F.2d 996 (7th Cir. 1989) (conditional plea valid where transcript shows parties and court agreed to reservation for appeal)
State v. Blaise, 191 Vt. 565 (Vt. 2012) (VOP proceedings use preponderance standard for proving violation)