STATE of Vermont v. Martin M. DANAHER
No. 01-469
Supreme Court of Vermont
November 20, 2002
819 A.2d 691
III.
Finally, claimant argues that he was denied due process because the appeals referee did not engage in fact finding; he did not receive notice of the Board‘s review hearing; and the transcript of the appeals hearing was incomplete. We have reviewed each of these arguments and hold them to be without merit.
Affirmed.
¶ 1 November 20, 2002. Defendant Martin M. Danaher appeals the trial court‘s finding that he violated the “no contact” condition of his probation. On appeal, defendant argues that the court erred in concluding that he violated the “no contact” probation condition by being in physical proximity to the victim and that he was not provided fair notice that such actions constituted “contact.” We affirm.
¶ 2 On October 11, 2000, defendant was charged with one felony count of lewd and lascivious conduct with a child, G.D., and two counts of prohibited acts with the same victim. On January 31, 2001, pursuant to a plea agreement, he pled no contest to the charge of lewd and lascivious conduct and to one count of prohibited acts. In exchange for his plea, defendant was placed on probation and received a deferred sentence. Both the probation and the deferred sentence included the condition that defendant have “[n]o contact with G.D. or her family without their prior consent and prior approval of the P[robation] O[fficer].” Further, defendant was required to reside outside of his home and not have overnight visits there until his probation officer and sex offender counselor approved. Defendant could, however, be at his home during the day, but if his children were present, his wife was to supervise.
¶ 3 Defendant‘s probation officer testified that on February 28, 2001, she met with defendant to review his conditions of probation and explain what was expected of him. She also testified that while discussing the terms of the “no contact” provision they discussed the fact that defendant lived up the hill from a residence frequented by G.D. The probation officer testified that she told defendant “he‘s not to have any contact with [G.D.]. That he shouldn‘t be down there when [G.D.] is down there.”
¶ 4 At all times pertinent to this case, G.D. lived on Kelly Road in Underhill. One of her close friends, Kaitlyn Corbett, lived with her family on Russin Road, a small, private residential road. Defendant also lived on Russin Road. Although there is no road connecting Kelly Road with Russin Road, a path connects the two.
¶ 5 On May 14, 2001, G.D. and Kaitlyn drove an ATV from the former‘s home to the latter‘s home. As they approached the Corbetts’ residence, they saw defendant on Russin Road feeding his horse. Defendant was also able to observe the two girls. At that time, defendant was boarding his horse on the Corbetts’ property.
¶ 6 After G.D. and Kaitlyn arrived at the Corbetts’ home, defendant came toward them, apparently to put his horse in the Corbetts’ pasture, which was located near the Corbetts’ barn. As he
¶ 7 The following day, May 15, G.D. was waiting for the school bus with Kaitlyn at a bus stop located at the bottom of Russin Road. According to G.D.‘s testimony, defendant saw her as he drove up, stopped, then called to his own daughters who were also waiting at the bus stop. He rolled down his window and kissed both of his daughters. He stared at G.D. during this event, which lasted approximately four minutes. No evidence was presented regarding the physical distance between defendant and G.D.
¶ 8 Three other incidents involved defendant staring at G.D. One was brief and involved defendant pulling onto Russin Road, seeing G.D. at the Corbett residence, and slowing down and staring at G.D. as he drove past. The other lasted over an hour and involved defendant continually staring at G.D. while she was riding her horse. On a third occasion, defendant and his wife were walking their horses down Russin Road. G.D. and others were at the Corbett residence helping a veterinarian treat one of the Corbetts’ horses. When defendant and his wife came within fifty feet of the group, they stopped briefly, then turned and went back toward their own home. Defendant‘s wife testified that as soon as she saw G.D. she told defendant, “She‘s here. We need to turn around and go back home.” Defendant, according to his wife, agreed. When asked why she made that statement to her husband, she testified “he is not allowed to have contact with her.” The trial court found that while these three instances did not constitute contact, they provided circumstantial evidence from which it could be inferred that the two May incidents were not inadvertent.
¶ 9 The trial court found that the defendant had violated the “no contact” condition of both his probation and the deferred sentence warrant. It directed the court clerk to set a time for sentencing. Defendant appeals the trial court‘s decision to this Court.
¶ 10 The first claim defendant makes on appeal is that neither of the two events relied upon by the court to revoke his probation amounted to “contact” in violation of the “no contact” provision of his probation. Findings of fact fairly and reasonably supported by any credible evidence must stand. State v. Sanborn, 155 Vt. 430, 436, 584 A.2d 1148, 1152 (1990). This Court will uphold the trial court‘s legal conclusions if reasonably supported by its factual findings. Id.
¶ 11 As described in the trial court‘s findings, the first probation violation the court relied upon to revoke defendant‘s probation took place on May 14. Defendant saw G.D. and Kaitlyn ride an ATV to Kaitlyn‘s home. Despite the probation officer‘s instruction not to “be down there [at Kaitlyn‘s residence] when [G.D.] is down there,” defendant placed himself in physical proximity to G.D. and remained
¶ 12 The court further found that on May 15, when defendant placed himself in proximity to G.D. at the bus stop and stared at her, he intentionally violated the “no contact” provision of his probation. The court opined that to avoid violating this provision he should have driven by the bus stop without stopping near G.D. On appeal, defendant claims that since there was no evidence or testimony regarding his distance from G.D. during this event, the court could not infer that he was close enough to be within “proximity” to her. This Court may presume that the lower court properly inferred essential facts from its factual findings. Plant v. Ahlberg, 104 Vt. 16, 19, 156 A. 535, 536 (1931). Both G.D. and defendant‘s daughters were waiting at the same bus stop. There is no reason the court could not properly infer that by coming near his daughters at their bus stop while he knew G.D. was also present, defendant purposely put himself within physical proximity to G.D. See State v. J.T., 683 A.2d 1166 (N.J. Super. Ct. App. Div. 1996) (using totality of circumstances to draw inferences is an acceptable practice for a trial court).
¶ 13 Defendant also claims that he was not given fair notice of what constituted “contact” for the purposes of the “no contact” provision of his probation. “Due process requires that the defendant receive fair notice as to what acts may constitute a violation of his probation, thereby subjecting him to loss of liberty.” State v. Gleason, 154 Vt. 205, 216, 576 A.2d 1246, 1252 (1990) (internal quotations omitted). When a violation of a condition would not by itself amount to a criminal act, due process mandates actual notice. Mace v. Amestoy, 765 F. Supp. 847, 849 (D. Vt. 1991). “The instructions and directions given to a defendant by a probation officer or the court can also serve to provide fair notice.” Gleason, 154 Vt. at 216, 576 A.2d at 1252.
¶ 14 We will not disturb the trial court‘s finding regarding notice if the record contains any credible evidence that fairly and reasonably demonstrates that defendant received fair and actual notice. See id. at 217, 576 A.2d at 1255. Defendant‘s probation officer testified that she met with defendant to review his probation conditions and explain what was expected of him. With regard to the “no contact” provision, the probation officer instructed defendant that “he‘s not to have any contact with [G.D.],” and when G.D. was at the Corbetts’ home, he should not be. Despite this instruction, defendant intentionally placed himself within proximity to G.D. on both May 14 and May 15, 2001.
¶ 15 The trial court reasoned that defendant was put on fair notice of what constituted contact because “contact” is an ordinary term, and it was used in accordance with its everyday meaning. On appeal, defendant argues that the court used only one of many definitions of “contact” available in other dictionaries. He further argues that these other definitions do not contain the idea of “proximity,” which was integral in the court‘s conclusion. The existence of multiple definitions of a common term does not render that term ambiguous or vague.2
¶ 16 Defendant misunderstands the purpose of a “no contact” order by minimizing the two May incidents as “brief, public, and inadvertent.” The purpose of a “no contact” order is to protect the victim from future occurrences of the behavior which initially resulted in the order. State v. Schultz, 48 P.3d 301, 309 (Wash. 2002); cf. Rockhold v. Dist. Court for Muscatine County, 2002 WL 570718 (Iowa Ct. App. 2002). Furthermore, the trial court found that these incidents of contact were not inadvertent, but intentional. See Benson v. Muscari, 172 Vt. 1, 4, 769 A.2d 1291, 1295 (2001) (State must show only that defendant intended to do the act that constituted the violation). The court considered other incidents involving defendant and G.D. which, while not amounting to probation violations, provided circumstantial evidence that the violations found were intentional. The court may properly make circumstantial inferences regarding whether contact was accidental. See Commonwealth v. Tate, 612 N.E.2d 686, 689 (Mass. App. Ct. 1993) (judge in probation revocation proceedings could find that defendant‘s presence on the street where victim lived was not coincidental and that defendant‘s encounter with her had been contrived by him).
¶ 17 The trial court correctly found that defendant intentionally engaged in conduct that violated the “no contact” provision of his probation. The record, as summarized above, supports the court‘s finding that defendant had fair notice of what was required of him while on probation.
Affirmed.
¶ 18 Dooley, J., dissenting. Defendant has engaged in conduct that is undesirable and upsetting to the minor victim of the sex crime for which he has been convicted and is on probation. On numerous occasions he has placed himself in the position to watch and stare at the victim, on one occasion for more than one hour. During none of these incidents has defendant attempted to touch the victim, to communicate with her, or to seek communication from her.
¶ 19 I agree that probation conditions could have been crafted to prevent defendant‘s actions and should have been so crafted. One of the ironies of this case is that the court has now redrafted the conditions to draw very clear lines that prohibit defendant‘s actions. However, I cannot agree that the probation conditions that were in effect clearly prohibited defendant‘s actions or gave clear notice of what was prohibited. This deficiency is exacerbated by two additional factors: (1) one of the violation holdings --- that related to the bus stop incident ---
¶ 20 The result, I fear, is that we are punishing defendant not because he violated the conditions imposed upon him, but because he violated the conditions that hindsight shows should have been imposed upon him. I cannot conclude that this result is consistent with the fundamental fairness that should pervade a decision to incarcerate a probationer and, therefore, dissent.
¶ 21 The complaint that started this case contained a one paragraph affidavit of the probation officer, reporting a statement of the victim that defendant was watching her and would not leave the Corbett barn immediately when he saw her. The victim said that defendant was “making her feel uncomfortable with his presence.” The complaint did not suggest that the violation consisted of defendant placing himself in the “proximity” of the victim. Nor was there any allegation that defendant tried to communicate with the victim or touch her.
¶ 22 In finding “contact” in two of the five incidents reported by the probation officer, the trial court relied upon an alternative definition found in one dictionary. The definition is: “b. The state or condition of touching or of immediate proximity.” As defendant pointed out, the dictionary definitions of “contact” vary, but only a few go beyond actual touching --- that is, physical contact --- or communication; neither of which is found here. See
¶ 23 While the definition adopted by the trial court is debatable, I think the next leap of logic is not. The trial court went on to drop the modifier “immediate” and held that presence in proximity to the victim is sufficient. In this logical leap, the notion that proximity can be so close as to be the functional equivalent of touching is lost.
¶ 24 There is still a third logical leap in the finding of a breach of the condition in the bus stop incident. The State failed to show how close to the victim defendant came when he greeted his children. The evidence was merely that defendant stopped his car and called to his children to come to the car. The majority skates over this with the observation that “the lower court properly inferred essential facts from its factual findings” because
¶ 25 To be sure, I do not believe that the trial court can infer essential facts with no evidence to support the inference. Our precedents require that the court‘s conclusions be supported by its findings and by the evidence. See State v. Austin, 165 Vt. 389, 397, 685 A.2d 1076, 1082 (1996). The case on which the majority relies deals with mental elements that are mixed questions of fact and law in a civil case. Plant v. Ahlberg, 104 Vt. 16, 19, 156 A. 535, 536 (1931), is a deceit case in which the trial court found that the defendant defrauded the plaintiff in the sale of a truck without finding specifically that the defendant intended to deceive the plaintiff or that the plaintiff relied on the defendant‘s misrepresentation in deciding to buy the truck. This Court held that these elements of the tort could be inferred from the facts found. Id. The important point about Plant is that mental elements almost always have to be inferred from subsidiary facts, and the evidence existed to make that inference. Here, the element of physical distance, made an element by the court‘s construction of “contact,” cannot normally be inferred from other facts, and, in any event, no subsidiary facts or evidence from which to draw such an inference are present in this case.
¶ 26 I would reverse the decision to revoke probation based on the bus stop incident. Since we cannot know what sentence would have been imposed if the court had found one, but not two, violations of probation conditions, this reversal alone would require a remand for resentencing. See State v. Higgins, 147 Vt. 506, 508, 519 A.2d 1164, 1166 (1986) (per curiam).
¶ 27 I would not, however, remand because I would reverse both probation violation conclusions. I acknowledge that the validity of the second violation determination, based on the Corbett residence incident, is closer, primarily because of the instructions of the probation officer and the evidence of specific distance, but I still do not believe the violation could be found on the court‘s theory.
¶ 28 First, the court never found that defendant violated the specific instructions of the probation officer, probably because they were phrased as advice and not as a command. Thus, the majority has relied upon facts not found by the trial court.4 In fact, the trial court‘s decision rests on the same proximity theory as employed in finding a violation for the bus stop incident. As stated above, I cannot accept that theory.
¶ 29 Second, a probation officer can give direction within the contours of the court‘s probation condition but cannot create a condition different from that imposed by the court. See State v. Moses, 159 Vt. 294, 300, 618 A.2d 478, 481 (1992).
¶ 30 Third, and most important, the probation officer‘s direction was ambiguous, if not contradictory. The exact phrasing of the language relied upon by the majority is: “he shouldn‘t be down there when she is down there.” (Emphasis supplied.) This is not the language of command, as asserted by the majority. I suspect, as I stated above, that the phrasing of the statement is why the trial court never mentioned it in its findings.
¶ 31 I say “contradictory” because the probation officer also later authorized defendant to move back into his house nearby to the Corbett residence5 and allowed him to board his horse in the Corbett pasture.6 Given these actions and the fact that the victim‘s good friend was a Corbett daughter, it was almost certain that defendant and the victim would come in proximity with each other. Thus, if presence in proximity of the victim is the violation, the actions of the probation officer virtually insured that the violation would occur.
¶ 32 The trial court‘s approach in this case is reminiscent of the trial court‘s approach in State v. Goyette, 166 Vt. 299, 691 A.2d 1064 (1997), in which the defendant was convicted by jury of violating an abuse prevention order by harassment of the victim under a definition of “harassment” so broad that “virtually any conduct by defendant causing disagreement between the parties or concern on the part of the complainant could have resulted in defendant‘s criminal liability.” Id. at 303, 691 A.2d at 1067. We reversed because the breadth of the charge went beyond any reasonable definition of harassment. Id. at 304, 691 A.2d at 1067. Here, the term “contact” has been defined unreasonably broadly to cover conduct because it bothers the victim. For the same reason that we reversed in Goyette we should do so here.
¶ 33 In summary, when we are dealing with the liberty of the probationer, I believe we must insist that probation conditions contain the kind of bright line that enables the probationer to know precisely what is expected of him. Ironically, the trial court recognized this in resentencing defendant to jail time and new probation conditions. Those conditions provide:
22. Defendant is not to place himself intentionally within 200 feet of G.D. or remain within 200 feet when her presence becomes known. Anytime defendant is notified of G.D. visiting the Corbett residence or observing G.D. at the Corbetts, defendant is not to place himself or remain in view of G.D. or of Corbett‘s residence. When driving on Russin Road, defendant is to maintain an appropriate
speed and not take special notice of what is happening on Corbetts property. 23. “Contact” includes physical proximity and any form of communication.
If the original sentence had contained comparable conditions, I doubt this case would have arisen. The defendant is entitled to predictable restrictions, but did not receive them here.
¶ 34 I dissent.