State of Vermont v. Cameron Albarelli
No. 15-165
Superior Court, Chittenden Unit, Criminal Division
November 18, 2016
2016 VT 119 | 159 A.3d 627
Prеsent: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
66. Because the information provided defendant with a definite statement of all essential elements of the charge of aggravated sexual assault and he suffered no prejudice from inclusion of the incorrect statutory citation, I would affirm this conviction.
Matthew F. Valerio, Defender General, and Joshua O‘Hara, Appellate Defender, Montpelier, for Defendant-Appellant.
¶ 1. Skoglund, J. Defendant Cameron Albarelli appeals his conviсtions following a jury trial in the Superior Court, Chittenden Unit, Criminal Division. Defendant asks this Court to reverse his convictions of simple assault, disorderly conduct, and providing false information to a police officer. He also challenges various conditions of his probation. We affirm defendant‘s convictions and
I. Factual Background
¶ 2. This case arises from a fight involving two groups of men that occurred on July 18, 2013, around midnight at the north end of Church Street in Burlington. As a result of the altercation, defendant was charged with simple assault, disorderly conduct, and giving false information to a police officer with the intent to deflect the investigation. At his jury trial on February 3, 2015, the State presented several witnesses to prove the charges, including the complainant, two eye witnesses socializing with defendant‘s group, one eye witness that was unaffiliated with either of the parties, and the officer who assisted with the arrest. The witnesses described the events on the night of July 18 as follows.
¶ 3. That night, the complainant, his brother, and four other friends were bar hopping on Church Street to celebrate the complainant‘s brother‘s wedding, which was the following day. After a drink at a bar on Pearl Street at the north end of Church Street, the bachelor party intended to move back south on Church Street to visit another bar. While they were walking, the complainant‘s party observed what was described as “not a friendly conversation” between an older man sitting alone on a bench and a group of five people.
¶ 4. Defendant was part of that group. According to trial testimony, he and four friends—two male and two female—were walking north on Church Street when the older man said something to the group and, in response, defendant and his two male friends yelled at and threatened the man.
¶ 5. Observing this argument, the complainant‘s party suggested that the three men, including defendant, leave the man alone. They were told to mind their business. Words were exchanged between the two groups until defendant “freaked out” and attacked the complainant‘s brother. Members of both parties moved to separate dеfendant and the complainant‘s brother. The complainant, who was about 6‘3” tall, placed himself between the men, with his back to his brother and his face to the defendant, who was about 5‘9” tall.
¶ 6. Defendant continued his attack, but now targeted the complainant. Trial witnesses’ accounts differed regarding the location of the fight and the direction in which the fight was
¶ 7. With a description of two males, one in a sweatshirt and another in a grey t-shirt with “Chicago” written on it, the arresting officer and assisting officer circled the area, observed two individuals matching the description, and stopped them for questioning. Defendant initially denied being on Church Street or being involved in any altercation, but after continued questioning, the assisting officer heard defendant say, without admitting to being in the fight, that he was outnumbered and had fled south on Church Street. When the officers asked defendant to identify himself, he provided the name “Cameron Mitchell” and the birth date July 14, 1994. The officers discovered no Vermont records under the provided name and confronted defendant about the crime of providing false information to a police officer. It was then that defendant gave his full name, “Cameron Mitchell Albarelli,” and correct birth date, July 14, 1995. Following this exchange, defendant was taken into custody and charged with the offenses listed above.
¶ 8. After the State concluded its case, defendant chose not to present witnesses or evidence. At a subsequent charge conference, defendant asked the court to instruct the jury on self-defense. The court refused to give a self-defense instruction because “no evidеnce at all” raised the issue of whether defendant believed he was in immediate danger of bodily harm.
¶ 9. Subsequently, the jury returned guilty verdicts on all three charges.
¶ 10. At sentencing, defendant asked the court to impose a sentence crafted around probation and rehabilitation with no further incarceration. The State requested two additional months of incarceration, as well as substance-abuse and anger-management counseling. The court imposed a sixty-day to two-year sentence, with all but sixty days suspended, which were to
¶ 11. This appeal followed. Defendant argues that (1) his simple assault conviction should be reversed because the trial court failed to give a self-defense instruction; (2) his disorderly conduct conviction should not stand because the evidence was insufficient to convict and because the court failed to instruct the jury on unanimity; (3) his false information to a law enforcement officer conviction should be reversed bеcause there was insufficient evidence to prove he had the purpose to deflect an investigation; and (4) the trial court committed a reversible sentencing error when it imposed defendant‘s probation conditions.
II. Simple Assault and Self-Defense Instructions
¶ 12. Defendant challenges the trial court‘s refusal to provide a self-defense instruction to the jury. We affirm.
¶ 13. To be entitled to a defense instruction, defendant must establish a prima facie case for each element of the defense asserted. See State v. Wetter, 2011 VT 111, ¶ 17, 190 Vt. 476, 35 A.3d 962 (citing State v. Knapp, 147 Vt. 56, 59, 509 A.2d 1010, 1011 (1986)). Thus, a self-defense instruction is warranted only if a defendant can show that (1) he had an honest belief that he faced imminent peril of bodily harm and that (2) the belief was grounded in reason. See State v. Shaw, 168 Vt. 412, 414, 721 A.2d 486, 489 (1998). Once a defendant has satisfied the initial burden of production for the defense, the burden then shifts to the State to “disprove self-defense beyond a reasonable doubt.” State v. Forant, 168 Vt. 217, 220, 719 A.2d 339, 401 (1998). Here, the court concluded that defendant did not meet his initial burden, and thus was not entitled to a self-defense instruction. We agree.
¶ 14. First, there is a dearth of evidence in the record to show that defendant believed he wаs in peril of imminent bodily harm. In fact, there is testimony that suggests the opposite. Two of the State‘s witnesses testified that, after the initial altercation between defendant and the complainant had ended and the complainant‘s party had decided to remove themselves and call the police, defendant pursued the complainant‘s party, threatening to attack again. Another of the State‘s witnesses testified that defendant, with his friend‘s encouragement, continued hitting the complainant, even after it was apparent that the complainant was not
¶ 15. The trial court did not err when it found that this evidence, as a whole, did not support defendant‘s belief of imminent bodily harm. See, e.g., People v. Blair, No. 298377, 2011 WL 4501909, at *3 (Mich. Ct. App. Sept. 29, 2011) (“The evidence regarding the size difference between the victim and defendant is not enough to support an inference of self-defense.“); State v. Chambers, 671 S.W.2d 781, 783 (Mo. 1984) (en banc) (“Something more than fear of size, however, is required to justify self-defense.“); State v. Davis, No. 01 JE 18, 2002 WL 924609, at *2 (Ohio Ct. App. 2002) (refusing to find defendant had belief of imminent bodily harm and holding that even though victim was walking towards and pointing his finger at defendant, victim “was not waiving his fists in [defendant‘s] face,” his “hand was not even balled into a fist, nor was [he] even touching [defendant]“); cf. People v. Rodriguez, 631 N.E.2d 427, 430 (Ill. App. Ct. 1994) (finding defendant presented sufficient evidence to raise issue of self-defense when record indicated that along with evidence showing defendant was physically smaller than victims—defendant observed men beating another man; defendant attempted to break up fight; defendant was hit over head with beer bottle; defendant ran away but was chased by eight to ten larger men; and when defendant was cornered, he took out little pocket knife and “started swinging because [he] was scared“).
¶ 16. Further, defendant failed to show that his belief of imminent bodily harm was based in reason. Without citing supporting case law, defendant argues that the court should have inferred the belief was reasonable from the evidence of the size difference and the forward progress of the complainant. This Court agrees with the lower court‘s conclusion there was “no evidence at all” that [the complainant] was acting aggressively toward [defendant],” and thus concludes that the presented evidence was insufficient to infer a belief based in reason. See, e.g., People v. Dillard, 745 N.E.2d 185, 189 (Ill. App. Ct. 2001) (finding that evidence that victim was physically larger and had initiated first of two altercations could not support self-defense instruction); Rajnic v. State, 664 A.2d 432, 436 (Md. Ct. Spec. App. 1995) (affirming that evidence was sufficient to support jury‘s finding
¶ 17. Defendant further contends that the law does not require defendant to wait until “[the complainant] cocked his fist back to punch” in order to be entitled to a self-defense instruction. We agree; it is well-established that “[t]he right of self-defense does not require that one be actually assaulted.” State v. Wheelock, 158 Vt. 302, 307, 609 A.2d 972, 975 (1992). As described above, however, the right of self-defense does require that a defendant have an honest and reasonable belief that he faces imminent bodily harm. Shaw, 168 Vt. at 414, 721 A.2d at 489. Here, no evidence sufficiently established this belief. Because “[a] court‘s obligation to charge on a defendant‘s theory is limited to situations in which there is evidence supporting the theory,” State v. Nunez, 162 Vt. 615, 617, 647 A.2d 1007, 1009 (1994) (mem.), the lower court did not err by refusing to instruct on self-defense after defendant failed to prove the necessary prima facie case.1
¶ 18. We find no error and affirm the lower court‘s refusal to issue a self-defense instruction.
III. Disorderly Conduct
¶ 19. Couched in the self-defense jury instruction argument, defendant briefly contends that the evidence was insufficient to convict on disorderly conduct and that “there [was] a jury unanimity problem because the jury instructions did not require the jurors to be unanimous as to the conduct that resulted in [the disorderly conduct] conviction.” We affirm.
A. Insufficient Evidence
¶ 20. Defendant argues that the State did not produce evidence sufficient to establish the elements of disorderly conduct,
¶ 21. First, defendant contends that because there was a lack of evidence as to how the fight between defendant and the complainant‘s brother started, the State failed to produce sufficient evidence to show defendant “engaged in fighting behavior.” “Where the statute does not specifically define a term, courts resort to the common understanding of a term.” State v. Amsden, 2013 VT 51, ¶ 19, 194 Vt. 128, 75 A.3d 612. The verb “engage” is defined as “[t]o employ or involve oneself; to take part in; to embark on.” Engage, Black‘s Law Dictionary 570 (8th ed. 2004). Thus, the State does not need to prove that defendant started the fight, but only that he was part of it. Viewed in a light most favorable to the State, the witnesses’ testimony that defendant repeatedly punched complainant‘s brother “fairly and reasonably supports” the conclusion that defendant “engaged in fighting behavior.”2 Vargas, 2009 VT 31, ¶ 18.
¶ 22. Defendant continues by arguing that the State did not sufficiently prove he recklessly caused the risk of public inconvenience or annoyance. We have adopted the Model Penal Code‘s definition of recklessness, which states:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor‘s conduct and the circumstances known to him, its disregаrd involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor‘s situation.
¶ 23. This Court has also affirmed that proof of defendant‘s awareness of the risk can be satisfied not only by evidence that a crowd of people were drawn to the incident, but also by evidence that the conduct occurred in a public place with or without people present. State v. Lund, 144 Vt. 171, 178-79, 475 A.2d 1055, 1060 (1984) (concluding that disorderly conduct may be based on showing that tumultuous behavior occurred in public place, with or without many people present), overruled on other grounds by State v. Begins, 148 Vt. 186, 531 A.2d 595 (1987); State v. Pickett, 137 Vt. 336, 338-39, 403 A.2d 272, 273-74 (1979) (finding sufficient evidence of intent where defendant engaged in threatening behavior while observed by crowd sufficient to establish intent).
¶ 24. Here, the State presented evidence of defendant‘s behavior surrounding the charged conduct, including testimony that: the events of the night took place in a public place; there was a loud, heated exchange of words between defendant and complainant‘s group; at least one member of the public was drawn to the incident; members of both groups tried to separate defendant from the complainant‘s brother; and defendant pursued the complainant‘s group after both fights were separated. We are satisfied that the circumstantial evidence, when viewed in a light most favorable to the State, “fairly and reasonably supports” the
B. Unanimity-of-Jurors
¶ 25. Defendant argues that his conviction of disorderly conduct for engaging in fighting behavior must be reversed because the court‘s instructions failed to identify what conduct was the basis for the charge—the fight with complainant‘s brother or the assault on complainant. Before reviewing the merits of defendant‘s jury unanimity argument, it must be noted that this challenge was not preserved for appellate review per
¶ 26. We have consistently held that “[p]lain error will be found only in rare and extraordinary cases where the error is obvious and strikes at the heart of defendant‘s constitutional rights or results in a miscarriage of justice.” State v. Streich, 163 Vt. 331, 353, 658 A.2d 38, 53 (1995); see also State v. Gagne, 2016 VT 68, ¶ 31, 202 Vt. 255, 148 A.3d 986; State v. Bruno, 2012 VT 79, ¶ 43, 192 Vt. 515, 60 A.3d 610. To find plain error, “(1) there must be an error; (2) the error must be obvious; (3) the error must affect substantial rights and result in prejudice to the defendant; and (4) we must correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” State v. Herrick, 2011 VT 94, ¶ 18, 190 Vt. 292, 30 A.3d 1285.
¶ 27. The Vermont Constitution ensures a defendant‘s right to unanimous jury verdicts.
¶ 29. First, the trial court included a general instruction on unanimity, clearly stating the “necess[ity] that each juror agree to [each verdict].” State v. Verge, 152 Vt. 93, 97-98, 564 A.2d 1353, 1355-56 (1989) (finding no plain error where court gave general instruction on requirement of juror unanimity and defendant did not request special verdict); see also United States v. Eagle Elk, 820 F.2d 959, 961 (8th Cir. 1987) (“The mere fact that an instruction could conceivably permit a jury to reach a non-unanimous verdict is not sufficient to require reversal when the jury has been instructеd that it must reach a unanimous verdict.“).
¶ 30. Of far more importance, in both the State‘s opening and closing arguments the disorderly conduct charge was specifically tied to defendant‘s altercation with complainant‘s brother. Defendant‘s closing arguments recognized that the disorderly conduct charge was based on defendant‘s fight with the complainant‘s brother. “So one of the State‘s charges is disorderly conduct. They‘re saying that basically, you know, Mr. Albarelli engaged in fighting behavior on Church Street stemming from the altercation or alleged altercation with [the complainant‘s brother].” In his brief to this Court, defendant acknowledges that “the State and the defense argued about whether the scuffle with [complainant‘s brother] constituted disorderly conduct for engaging in fighting behavior.” Thus, although the court‘s instruction lacked specificity, no reversal is warranted; it is reasonable to conclude that the jury understood that the charge of disorderly conduct referred to defendant‘s fight with the complainant‘s brother.
IV. False Information to a Police Officer
A. Section 1754(a)
¶ 31. Defendant argues that
¶ 32. In May 2006, the Legislature amended
¶ 33. Our main goal in “statutory construction is to determine and give effect to the intent of the Legislature.” In re C.S., 158 Vt. 339, 343, 609 A.2d 641, 643 (1992) (citation omitted). To do so here, we look at the meaning of one operative clause: “A person who knowingly gives false information to any law enforcement officer with purpose to deflect an investigation from the person.” First, structurally and grammatically, all three elements are within a single clause. Each one is intrinsically linked to the next—the false information must be given to a law enforcement officer and it must be given with the purpose to deflect an investigation. These are not separate elements that can be checked off individually; instead, they are one clause explaining the action necessary to violate
¶ 34. Next, when specifically considering the phrase “with purpose to deflect an investigation from the person,” we look at the plain meaning of the individual language. The Model Penal
¶ 35. We recognize that the language of
¶ 36. “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573 (2002) (quotation omitted). Although this protection extends to the majority of false speech, the U.S. Supreme Court has made clear that the First Amendment does not protect all false statements “made to any person, at any time, in any context.” United States v. Alvarez, 567 U.S. 709, 720, 132 S. Ct. 2537, 2546 (2012) (“[C]ontent-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories of expression long familiar to the bar.” Id. at 717, 132 S. Ct. at 2544 (quotations omitted)). For restrictions on speech to stand, even restrictions on false speech, “[t]here must be a direct causal link between the restriction imposed and the injury to be prevented.” Id. at 725, 132 S. Ct. at 2549. In Alvarez, for example, the U.S. Supreme Court noted that such a link exists when the statute in question “also protect[s] the integrity of Government processes, quite apart from merely restricting false speech.” Id. at 721, 132 S. Ct. at 2546. Similarly, under
B. Sufficiency of the Evidence
¶ 37. Defendant argues that the trial court erred by denying his motion for judgment of acquittal on the charge of giving false
information to law enforcement with the purpose of deflecting the investigation. He contends that the State failed to produce evidence sufficient to prove defendant had the intent to deflect the investigation from himself. We affirm.
¶ 38. We review denial of a motion for judgment of acquittal de novo. State v. Ellis, 2009 VT 74, ¶ 21, 186 Vt. 232, 979 A.2d 1023. A judgment of acquittal is proper only if the State failed to put forth any evidence to support a jury verdict. See State v. Couture, 169 Vt. 222, 226, 734 A.2d 524, 527 (1999);
¶ 39. Defendant was charged under
¶ 40. As explained above,
¶ 41. Defendant argues that this Court implicitly recognized in Delaoz that giving a false name is never alone sufficient to sustain a conviction under
¶ 42. The State produced the following evidence through witness testimony: defendant fled the scene of the altercation on Church Street after expressing anger that the complainant‘s party called the police; officers found defendant, who looked as though he was perspiring, at the south end of Church Street; officers began to question defendant because he matched the witnesses’ descriptions of the individual involved in the altercation at the north end of
¶ 43. With this evidence, the question presented to the jury was whether the evidence proved beyond a reasonable doubt the State‘s allegation that defendant provided false information to the police officers with the intent to deflеct the investigation away from himself. They were not asked, as defendant tries to argue, whether defendant knew he was already under investigation and did not feel free to leave, whether defendant thought that giving the false information would successfully deflect the investigation from himself, whether defendant chose a good method in attempting to deflect the investigation, whether the police officers had the authority to arrest defendant before the false information was given, whether the police officers had some other method to fulfill all identity-related needs they had, or whether defendant was actually successful in his deflection.
¶ 44. When viewed in a light most favorable to the State, the evidence presented reasonably and fairly supports the jury‘s conclusion that defendant, by providing the police officers with his first and middle name and an incorrect birth year, intended to deflect their investigation away from himself. Cf. In re Q.P., 2015 IL 118569, ¶¶ 23-27, 40 N.E.3d 9 (finding evidence of juvenile giving misspelled name and false birthdate, even after being handcuffed and placed in police car, sufficient tо show juvenile intended to avoid apprehension on outstanding arrest warrant and thus support obstruction of justice conviction); Edmondson v. Commonwealth, 448 S.E.2d 635, 637 (Va. 1994) (finding that use of false name following commission of crime can constitute form of flight).7
V. Probation Conditions
¶ 46. Defendant presents several arguments regarding his probation conditions: first, the sentencing court failed to exercise its discretion and violated Vermont‘s individualized sentencing scheme by imposing “standard conditions” A through N; second, the sentencing court‘s oral pronouncement of conditions should control over the broader, written probation order with regard to conditions M, 1, 3, 5, and O through S; third, Conditions A, D, and E should be vacated because they are harsh or have no reasonable relationship to defendant‘s conviction or public safety; and fourth, Conditions K and 5 should be vacated as an unlawful delegation of sentencing authority.
¶ 47. Probation is governed by
¶ 48. “A trial court enjoys broad discretion in fashioning a sentence,” including probation conditions. Putnam, 2015 VT 113, ¶ 28 (citing State v. Gibney, 2003 VT 26, ¶ 53, 175 Vt. 180, 825 A.2d 32). We review for abuse of such discretion, ensuring the sentencing court used “‘sound discretion,’ not discretion exercised arbitrarily, but with due regard for that which is right and equitable under the circumstances, and directed by reason and conscience to a just result.” Id. ¶ 43 (quoting State v. Hunt, 145 Vt. 34, 43, 485 A.2d 109, 113 (1984)). The conditions will be upheld as long as “thеre is a reasonable basis for the court‘s action.” State v. Savo, 141 Vt. 203, 208, 446 A.2d 786, 789 (1982) (citation omitted). The party alleging the abuse bears the burden to “show that the court failed to exercise its discretion or did so for ‘reasons clearly untenable or to an extent clearly unreasonable.‘” Putnam, 2015 VT 113, ¶ 44 (quoting Savo, 141 Vt. at 208, 446 A.2d at 789).
¶ 49. Defendant contends that the sentencing court abused its discretion by imposing Conditions A-N “without individualized findings or reasons supporting each condition.” This Court has addressed this argument several times. In Putnam we held that “[t]o determine if the court acted within its discretion in imposing particular conditions, we have not required the sentencing court to make specific findings regarding each condition, but have looked to whether the record supports the court‘s exercise of its discretion.” Putnam, 2015 VT 113, ¶¶ 45, 45 n.10 (noting that in some instances, “particularized findings may be necessary to support imposition of a condition for reasons other than demonstrating the requisite nexus“). Subsequently in State v. Levitt, we reiterated Putnam‘s rejection of a narrow reading of
¶ 50. Condition A requires defendant to notify his probation officer within forty-eight hours if he is arrested or given a citation for a new offense. Defendant contends that Condition A is not “finely-tuned” and may result in revocation for a defendant who
¶ 51. The State concedes that the record does not support the imposition of Conditions C-E because it does not show that the conditions would address the conduct for which defendant was convicted or aid him in leading a law-abiding life. Condition C requires defendant to regularly work at a job, look for a job, or get job training if his probation officer tells him to do so. Condition D requires defendant to work regularly at a community service job if ordered by the court. Condition E requires defendant to support his dependents or meet other family responsibilities. We agree the record does not support the imposition of these conditions and strike Conditions C, D, and E.
¶ 52. Conditions F, G, H, I, and J are all similar to Condition A because they also relate to the supervision of defendant by his probation officer. Condition F requires defendant to meet with his probation officer, upon request. Condition G requires defendant to notify his probation officer within two days if he moves or if his address changes. Condition H requires defendant to tell his probation officer if he loses or changes his job. Conditions G and H are “mere notification requirement[s] that neither impinge[] on any fundamental freedom nor permit[] a probation officer to wield any kind of discretion.” Levitt, 2016 VT 60, ¶ 23. Although Condition F permits a probation officer to exercise minor discretion to determine when to meet defendant, it is directly related to the “supervision of defendant by his probation officer to assist dеfendant in leading a law-abiding life.” Putnam, 2015 VT 113, ¶ 48. Because Conditions F, G, and H are “basic administrative requirements that are necessary to supervised release,” United States v. Thomas, 299 F.3d 150, 154 (2d Cir. 2002) (quotation omitted), and do “not burden defendant, unduly restrict protected freedoms, or delegate sentencing authority to a probation officer — we affirm [their] imposition.” Levitt, 2016 VT 60, ¶ 23.
¶ 53. Condition I prohibits defendant from leaving Vermont without written permission from his probation officer. In Levitt we concluded that although Condition I is valid on its face, it “turn[s] over to a probation officer the complete power to determine defendant‘s [ability to travel], with no guiding standards.” Id. ¶¶ 25, 27 (quotation omitted). Because “the reasons why defendant would need to travel outside of Vermont are predictable, and defendant can give prior notice of the time of the travel, destination, and reason for it[,] ... we believe that standards can be created even though they may, in turn, accord substantial discretion to the probation officer in making the decision.” Id. ¶ 28. Thus, we remanded Condition I for the sentencing court to add the necessary guiding standards. We do so here, as well.
¶ 54. We also discussed Condition J — which requires defendant, upon request and without delay, to allow his probation officer to visit him wherever he is staying — at length in Levitt. 2016 VT 60, ¶¶ 29-32. There, after a survey of both federal and state law, we concluded that “a home visit is not a search and a home-visit requirement does not run afoul of the Vermont or Federal Constitution search and seizure provisions.” Id. ¶ 32. We held that home visits are “legitimate tool[s] of probation administration and [are] valid.” Id. Similarly, we uphold the imposition of Condition J in this case.
¶ 55. Condition K orders defendant to participate in any counseling or training program deemed appropriate by his probation officer and to complete said counseling or program to the satisfaction of his probation officer. Defendant argues that Condition K should be vacated as unlawful delegation of sentencing authority. The State concedes that this condition gives the probation officer the open-ended authority found to constitute plain error in Putnam. 2015 VT 113, ¶ 73. Condition 31, mandating anger management and mental health counseling per his probation officer, fails for these same reasons. Thus, we remand Conditions K and 31 to give the trial court an opportunity to make findings to support, revise, or remove the conditions.
¶ 56. Condition L prohibits defendant from buying, having, or using any regulated drugs unless they are prescribed by a doctor. “A condition that forbids criminal conduct is valid.” Id. ¶ 56. Thus, “[b]ecause the condition precludes conduct that is criminal, the trial court was not required to find a reasonable
¶ 57. Condition M authorizes defendant‘s probation officer or any other person authorized by said officer to require defendant to have random urinalysis testing. Defendant contends that Condition M exceeds the oral pronouncement of conditions, and thus the oral pronouncement should control over the broader, written probation order. Additionally, he argues that “the absence of the necessary findings not only invalidates the warrantless search condition[] itself, but also demonstrates the court did not intend to impose the[] obligation[].” In Putnam we concluded that “[t]o the extent that the testing is not limited to detecting the use of regulated drugs and the condition thus authorizes regulation of otherwise lawful conduct, with significant implications for defendant‘s liberty, it must bear some reasonable relationship to the crime for which he was convicted.” Id. ¶ 57. There, we found the record contained no such evidence, and thus struck the condition. Id. Here, we find a similar lack of supporting evidence and specificity of the condition. Although the sentencing court suspected that alcohol was involved in the offense, and defendant himself admitted to abusing alcohol, there was no evidence presented to indicate defendant also abused drugs. Because the scope of testing permitted by the condition is not tailored to defendant‘s rehabilitation, we strike Condition M.8
¶ 58. Condition N prohibits violent or threatening behavior at any time. The sentencing court reasonably found a relationship between the condition forbidding violent and threatening behavior, including threats of personal injury or property damage — and the crime for which defendant was convicted — simple assault. We affirm the imposition of Condition N, as modified by Condition 33, to prohibit verbal, written, or electronic threats of personal injury or property damage.
¶ 59. The State concedes that “there does not appear to be a nexus” between Condition O, which prohibits defendant from
¶ 60. Condition 1 completely prohibits defendant from buying, having, or drinking any alcoholic beverages. To enforce this prohibition, Condition 1 requires defendant to submit to alcosensor tests or any other alcohol test when his probation officer or their designee tell him to do so. It is apparent that Condition 1 is at direct odds with Vermont‘s policy regarding alcohol and drug abuse programs under
¶ 61. As stated before, the purpose of imposing probation conditions is to “ensure that the offender will lead a law-abiding life or to assist the offender to do so.”
¶ 62. Unlike Condition 1, Condition P does not categorically prohibit defendant from drinking alcoholic beverages. Instead, Condition P prohibits defendant from drinking alcoholic beverages to the extent it interferes with his employment or the welfare of his family, himself, or any other person. Defendant plainly admitted to having an alcohol-abuse problem, and defendant has previously been convicted of alcohol related offenses. We find that the record supports Condition P‘s narrower prohibition of alcohol consumption because it does not, as Condition 1‘s complete prohibition does, criminalize defendant solely because of his consumption of alcohol. Rather, the alcohol prohibition is linked to preventing his future criminality and ensuring his alcohol consumption does not interfere with his ability to lead a law-abiding life. Thus, we uphold Condition P‘s limited prohibition of alcohol consumption and the attendant alcosensor tests necessary to administer the condition.
¶ 63. Condition S requires defendant to pay any unpaid amounts due to the court or the Tax Department for any legal services provided at state expense. This Court follows Putnam, and upholds Condition S. 2015 VT 113, ¶ 61.
¶ 64. Defendant contends that Conditions 3 and 5 are broader than the sentencing court‘s oral pronouncement, which (a) prohibited defendant from purchasing, possessing, or drinking any alcohol, (b) directed defendant to participate in substance-abuse screening and, if so directed, complete counseling and treatment to his probation officer‘s satisfaction, and (c) required defendant to complete mental health and/or anger management counseling to the satisfaction of his probation officer.
¶ 65. Condition 3 requires defendant to have alcohol and/or drug screening, and, if the screening shows that counseling and/or treatment is needed, he must attend and participate in whatever counseling and/or treatment his probation officers tells him to. Condition 3 falls squarely within the oral pronouncement that defendant was to participate in substance abuse screening and if directed, to complete counseling or treatment. The written statement simply separates each step into a different sentence — defendant must have alcohol screening; if screening indicates the need for counseling and/or treatment, his probation officer will direct him to do so; if he is directed to do so, he must complete it to his officer‘s satisfaction. Thus, we uphold Condition 3.
¶ 66. Condition 5 requires defendant to attend, participate in, and complete a residential treatment program if his probation officer tells him to do so. The State concedes that Condition 5 does not specify the type of residential training that the probation officer has the authority to order. Thus, this gives the probation officer the same open-ended authority as we found with Condition K. Therefore, we remand Condition 5 for the sentencing court to justify the condition, make it more specific, or strike it.
¶ 67. Condition 32 notes that defendant is subject to standard conditions A-N. We strike Condition 32 as failing to follow our directive for individualized sentencing.
¶ 68. Finally, the following conditions are uncontested and thus we affirm their imposition: Condition 4, requiring defendant to allow any treatment or counseling program to tell his probation officer and the court about his attendance and participation in the program; Condition 33, amending Condition N to prohibit verbal, written, or electronic threats of personal injury or property damage; Condition 34, allowing defendant‘s probation officer to restrict associates and set a curfew; Condition 35, prohibiting defendant from contacting complainant or complainant‘s brother; and Condition 36, authorizing electronic monitoring per defendant‘s probation officer.
Affirmed as to defendant‘s simple assault conviction under