¶ 1. The question before the Court in this case is what style of civil discourse may constitute “threatening behavior.” Defendant appeals from the trial court’s revocation of his probation for violating a condition that read, “Violent or threatening behavior is not allowed at any time.” He contends that he could not have violated the condition because his only action was speaking with no accompanying physical conduct. We reverse because the condition failed to thoroughly apprise defendant of the conduct prohibited.
¶ 2. In 2000, defendant pleaded guilty to a charge of sexual assault on a minor and was sentenced to a term of three to eleven years, all suspended. The court placed him on probation subject to a series of standard and special conditions. In the ensuing years he twice violated the probation conditions — once for failing to complete a required therapy program and once for being in the presence of minors without authorization from his parole officer — and subsequently served time in jail. In December 2008, while defendant was again out on probation, his mother entered into a rental agreement for the lease of a mobile home in Bakersfield, Vermont. Defendant, with the landlord’s knowledge, lived in the trailer with his mother and performed some repairs on the property in lieu of a portion of the rent. In March 2009, the landlord claimed that some rent was past due and that defendant had failed to complete some of the agreed-upon repairs. Defendant disputed those claims. Ultimately, as a result of the nonpayment of rent, the landlord began eviction proceedings and attempted to sell the mobile home.
¶ 3. In response, defendant quarreled with the landlord, at times suggesting he would destroy the mobile home, undo the repairs he had made, and, on at least one occasion, saying he was going “to kick [landlord and her husband’s] butts.” At no time, however, did he approach or make a physical gesture towards the landlord. She described how “he’d start to get huffy, so he’d walk away. And he’d start mouthing off... as he’d go towards the trailer.” One day, after the landlord showed the home to a prospective buyer, she and defendant got into an especially heated argument, and defendant said he was going to burn the trailer down. Following this incident, defendant’s probation officer filed a violation of probation
¶ 4. At the violation of probation merits hearing, defendant denied directly threatening the landlord. He admitted he was angry with her and had told her he would remove the repair work he had done. The landlord contradicted this testimony, confirming defendant’s threats to burn the home down and the other verbal threats to herself and her husband. She also stated that defendant had not threatened her in a physical manner. However, she testified that she believed his threats because she had previously seen displays of his temper.
¶ 5. While contesting the violation on the merits, defendant simultaneously moved to dismiss the complaint on the ground that his only actions were verbal, and he never undertook any violent or threatening conduct. Defendant argued that “threatening behavior” requires “the presence of a conduct component,” some threatening physical act. He also claimed that the probation condition was unconstitutionally vague and overbroad and infringed upon his First Amendment rights to “free personal expression.” The trial judge denied the motion and found defendant had violated condition “M.” The court held that “[d]efendant’s repeated statements, made in angry tones over a course of weeks[,] to harm [the landlord] and to damage her property, constituted threatening behavior within the meaning of the law.” The court rejected defendant’s constitutional argument, and imposed defendant’s underlying sentence. He timely appealed.
¶ 6. Defendant essentially raises the same arguments before this Court that he presented in his motion to dismiss. He suggests that the phrase “violent or threatening behavior” necessarily requires conduct, which in turn involves some physical action. He cites to a number of our previous decisions — all by nonprecedential, three-justice panels — where we addressed violations of this same condition of probation. Compare State v. Judkins, No. 2002-049,
¶ 7. The above-cited decisions notwithstanding, we recognize that “[t]he question of whether verbal threats constitute threatening behavior in the context of probation conditions has yet to be decided by this Court.” State v. Gilbert,
¶ 8. To be charged with violating probation, a defendant must have notice “before the initiation of a probation revocation proceeding” of what circumstances will constitute a violation of probation. State v. Hammond,
¶ 9. As related to this case, the terms of condition “M” did not fairly inform defendant of what actions might subject him to probation revocation. While violent behavior may be more self-evident, what constitutes threatening behavior is less clear. In other contexts we have observed that sending threatening letters to a potential witness constituted a “threat” and was sufficient to support an obstruction-of-justice charge. State v. Ashley,
¶ 10. Defendant did no more than argue with his landlord. He was mouthy and obnoxious, but did nothing beyond expressing his displeasure at a perceived injustice. The idea that such behavior could properly be considered either “violent or threatening” or that the language of the condition could fairly apprise probationer that he must curb his tongue in any heated exchange or risk further incarceration is to stretch its meaning impermissibly. As written, condition “M” did not afford defendant a “reasonable opportunity to know what [actions were] prohibited, so that he [might] act accordingly.” United States v. Reeves,
¶ 11. We do not question the trial court’s findings that defendant had a testy relationship with his landlord and made disrespectful comments to her and her husband on several occasions. But the conclusion that his choice of words to express his anger and frustration violated his conditions of probation was erroneous. Defendant’s comments to his landlord
¶ 12. Bessette, upon which the trial court relied, is not at odds with our decision in this case. There, probationer was originally charged with lewd or lascivious conduct, and the State reduced the charge to three misdemeanors and he was convicted. We held that the probationer’s threatening telephone call to the victim evinced an intent “to stalk [the victim] for the purpose of injuring him or her,” which was sufficiently threatening behavior to violate this same condition “M.” Bessette, No. 2007-279,
¶ 13. We also note, without deciding, that were the condition to prohibit probationer’s use of what for him may be standard vocabulary, it would be difficult to find it “reasonably related to [defendant’s] rehabilitation or necessary to reduce risk to public safety.” 28 V.S.A. § 252(b)(18) (“The court shall not impose a condition prohibiting the offender from engaging in any legal behavior unless the condition is reasonably related to the offender’s rehabilitation or necessary to reduce risk to public safety.”); see also State v. Peck,
Reversed.
Notes
The complaint also alleged another violation of probation, which the trial court dismissed and which is not before this Court.