State v. Waters, 2013 Vt. 109

Background

Tyler Waters was subject to a 2009 relief-from-abuse (RFA) order that prohibited threatening, stalking, abusing, or harassing the petitioner but expressly permitted telephone contact (the order did not limit frequency, timing, or subject matter).
The State prosecuted Waters for violating the RFA’s prohibition on "harassing" after he sent ~37 text messages to the petitioner over ~37 days; none contained threats, profanity, or violent language.
At trial the court instructed the jury that harassment means conduct that "would cause a reasonable person to be annoyed, irritated, tormented, or alarmed;" both parties agreed to the instruction below and Waters did not object.
The jury asked for common-law meanings of “tormented” and “annoyed,” was told to use common definitions, and convicted Waters; he appealed.
The Supreme Court reviewed the unobjected-to jury instruction for plain error and evaluated whether the evidence could sustain a conviction under a properly constrained definition of harassment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court’s jury instruction defining "harassment" as conduct that would cause a reasonable person to be “annoyed, irritated, tormented, or alarmed” was legally erroneous (plain-error review).	The State relied on the instruction to prosecute repeated, unwanted texting as harassment; argued conduct could be criminal under the RFA’s no-harassment term.	Waters argued the instruction was overly broad and permitted conviction for merely annoying conduct; lacking a threat element, it failed to give adequate notice.	The Court held the instruction was plain error: RFA no-harassment provisions must be construed in favor of a narrower, stalking-like definition to afford fair notice.
What definition of "harassment" governs when an RFA order uses the undefined term "harass."	The State contended ordinary-language harassment could reach the repeated texting here.	Waters urged a limiting construction consistent with related criminal statutes or otherwise specific guidance.	The Court adopted the stalking statute’s definition (13 V.S.A. §1061(4)) as the appropriate default: harassment is actions directed at a person which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death.
Whether the evidence (37 texts over ~37 days) was sufficient to convict under the proper definition of harassment.	The State argued the frequency, persistence, and context (prior abuse and RFA) rendered the texts harassing.	Waters argued texts lacked threats and the RFA expressly allowed telephone contact without limits, so frequency alone could not create criminal harassment.	The Court held the evidence was insufficient under the stalking-informed definition; frequency alone (absent threats or fear-inducing content) could not sustain the felony conviction.
Remedy given the instructional/plain-error ruling.	N/A (remedy for defendant)	N/A	The Court reversed the conviction and remanded for entry of a judgment of acquittal.

Key Cases Cited

Benson v. Muscari, 172 Vt. 1 (Vt. 2001) (RFA may prohibit otherwise inoffensive contact to prevent escalation into abuse)
State v. Goyette, 166 Vt. 299 (Vt. 1997) (vacating VAPO conviction where harassment instruction was too broad and allowed conviction on insufficiently defined acts)
State v. Danaher, 174 Vt. 591 (Vt. 2002) (lenity and construing coercive conditions against the State when ambiguous)
State v. Sanville, 189 Vt. 626 (Vt. 2011) (orders that limit liberty must give clear notice of prohibited acts)
State v. Frechette, 161 Vt. 233 (Vt. 1993) (criminal prohibitions must define offenses with sufficient certainty)