State v. Emery

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 87-535


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 1, Windsor Circuit

George O. Emery, Jr.                         March Term, 1989


George F. Ellison, J.

M. Patricia Zimmerman, Windsor County Deputy State's Attorney, White River
  Junction, for plaintiff-appellee

Bruce M. Lawlor, Springfield, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.


     PECK, J.   Defendant appeals from a Windsor District Court order
concluding that he violated the terms of his probation, after conviction for
lewd and lascivious behavior with a minor.  We affirm.
     Pursuant to a plea agreement, defendant pled nolo contendere to a
charge of lewd and lascivious behavior in violation of 13 V.S.A. { 2602.  A
presentence investigation report was ordered, and in December 1985
defendant was sentenced to a term of zero to two years, all suspended except
for thirty days, with the balance of the time on probation.  Among the
conditions in the probation agreement were condition eight, requiring
defendant to participate fully in any program to which he might be referred
by his probation officer, and condition twenty-two, which required that
defendant "actively participate in the Windsor County Sex Offender's Program
and complete the same to the full satisfaction of your Probation Officer."
     Thereafter, defendant was evaluated by two mental health professionals,
who found him unsuitable for outpatient sex-offender treatment and submitted
a written report to his probation officer so stating.  After a new sex-
offender outpatient program was formed in Windsor County in 1986, defendant
was screened again, and found suitable for participation in the new program.
In order to participate in this program, defendant was required to sign a
treatment contract.  Defendant testified that, prior to his signing the
contract, William Eck, a probation officer, explained "some words . . .
that I didn't understand . . . pertaining to this penile machine, and I told
him I didn't like that at all."  Eck testified that he explained the details
of the program to defendant before he signed the treatment contract,
including the possible use of the penile plethysmograph.  The contract
defendant signed included among treatment goals "identifying and changing
deviant behavior patterns," with the understanding that "I will be asked to
discuss these tasks and assignments in group treatment."  Defendant
testified that although he felt pressured, he signed the contract for the
new program on August 14, 1986, after consultation with his attorney, and
thereafter attended three of four orientation meetings beginning on August
21, 1986.  Defendant attended none of the actual treatment sessions after
the first one.
     In September 1986 defendant's attorney advised his probation officer
of what the attorney considered to be a suicidal risk for his client if he
continued therapy, and the officer scheduled an evaluation with Dr. William
LeBlanc at Mary Hitchcock Memorial Hospital to assess any potential suicidal
risk.  Defendant refused to meet with Dr. LeBlanc, and on October 16, 1986
his probation officer signed a violation-of-probation complaint.  Defendant
was arraigned on October 21, 1986, and on October 29, 1986, the court
ordered an evaluation by Dr. William Cunningham, a psychologist, whose
written report was submitted to the court.  Dr. Cunningham testified at the
probation-violation hearing that defendant objected to the sex-offender
treatment program because it was "immoral."  He said that defendant
characterized his conduct with his stepdaughter as "non-sexual."
     Defendant testified that at his first group therapy session he was
told he would be required to "rehash the whole incident in front of the
group," to fantasize "[a] sexual encounter with a female," and "to
masturbate and be hitched up to this penile machine."  He stated that
according to his religious belief fantasizing and masturbation are wrong.
     William Ballantine, a psychologist with experience in dealing with sex
offenders, testified for the State that group treatment and behavioral
treatment "are considered the two most effective treatments."  Mary Jane
Edgerton, a mental health consultant experienced in working with sex
offenders, corroborated the point:
              Q.  The treatment program at West Central that Mr.
         Emery went to the first meeting - is that primarily
         group therapy?

              A.  It is entirely group therapy with some
         adjunctive individual sessions.  The primary modality of
         treatment is group therapy.

              Q.  Do you have an opinion as to the preference of
         group therapy versus individual therapy?

              A.  Yes, probably two.  One, is that the presence
         of 10 people versus two people is more effective
         modality for accomplishing very confrontive work.  Very
         difficult work.

              Q.  That would be a confrontive kind of a modality
         at that point?

              A.  . . . You have to look at this from the point
         of view that many people find it difficult to discuss
         their sexual fantasizing if it's deviant.  They're
         frightened of it.  They are ashamed of it . . . and it's
         very helpful to have other people who are committed to
         the growth and change process to help another person who
         might be having difficulty.  Some people have real poor
         communication skills.  They've lived a lifetime of not
         discussing themselves.  They don't know how to do it.
         The power of the group to help them do that is very
         important. . . .

     Dr. Cunningham testified that "I don't think there's anybody in the
field that would dispute that group treatment for sex offenders is the
treatment of choice."                        
     Based on testimony of psychologists testifying for the State, the trial
court found that "[t]he group meetings are confrontive and people obtain
support from other group members.  Confrontive groups are the best method to
reduce recidivism in sexual offenders."  The court also found that "[t]he
use of a penile plethysmograph and masturbation are not required in the
group and the defendant was told these methods were not to be used in the
group."
     The trial court found that "[t]he main thrust of the defendant's
behavior is to avoid treatment and not to preserve a religious belief.
Consequently, it is concluded the defendant's religious belief upon which he
relies is not sincere.  It is just one more argument he utilizes to avoid
treatment."  Defendant testified that he had sought and obtained counseling
help on his own from two counselors in Massachusetts and the pastor of his
church.  He contended that the alternative treatment he received met the
need for rehabilitation and the State therefore had no power to impose a
program on him that offended his religious belief.  The court rejected the
argument that defendant's private counseling arrangements sufficed to
relieve him of the obligations of his probation contract, and concluded that
defendant was in violation of the December 1985 probation agreement.  The
present appeal followed.
                                    I.
     Defendant argues first that the revocation of his probation violates
his right to religious freedom under the First Amendment to the United
States Constitution and Chapter I, article 3 of the Vermont Constitution.
Generally, probation conditions are valid "if reasonably related to the
crime for which the defendant was convicted."  State v. Whitchurch, __ Vt.
__, __, 577 A.2d 690, 692 (1990); State v. Gleason, 154 Vt. 205, 214, 576 A.2d 1246, 1251 (1990)(probation conditions must reasonably relate to
defendant's rehabilitation).  In Whitchurch we ruled that compliance with
the requirements set forth in the California case People v. Lent, 15 Cal. 3d 481, 486, 541 P.2d 545, 548, 124 Cal. Rptr. 905, 908 (1975), and the
American Bar Association Standards for Criminal Justice pertaining to
probation conditions "will result in probations conditions that meet
constitutional and statutory mandates."  Whitchurch at ___, 577 A.2d  at
692.  Under Lent, "a probation condition will be found valid unless: (1) it
has no relationship to the crime for which the defendant was convicted; (2)
it relates to conduct which is not itself criminal; and (3) it requires or
forbids conduct which is not reasonably related to future criminality."
Whitchurch at ___, 577 A.2d  at 692 (citing People v. Lent, 15 Cal. 3d 481,
486, 541 P.2d 545, 548, 124 Cal. Rptr. 905, 908 (1975)).  The American Bar
Association, Standards for Criminal Justice state that probation conditions
"should not be unduly restrictive of the probationer's liberty or autonomy"
and that "where fundamental rights are involved, special care should be used
to avoid overbroad or vague restrictions."  American Bar Association,
Standards for Criminal Justice 2d { 18-2.3(e)).  In State v. Mace, ___ Vt.
___, ___, 578 A.2d 104, 108 (1990), we noted, in the context of a freedom of
speech challenge, that "[p]robation conditions may impact upon a
probationer's First Amendment rights so long as the conditions have a
reasonable nexus with rehabilitation of the defendant and protection of the
public."  State v. Mace, ___ Vt. ___, ___, 578 A.2d 104, 108 (1990)(citing
United States v. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988)).
     We have never yet applied these tests where probation conditions
impinge on a probationer's freedom of religion.  In United States v,
Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975), however, the Ninth
Circuit analyzed the relationship between the guarantees under the Bill of
Rights and a sentencing court's broad power to impose probation conditions.
It recognized that "probationers, like parolees and prisoners, properly are
subject to limitations from which ordinary persons are free" but reasoned
that "these limitations in the aggregate must serve the ends of probation."
Id.  The Ninth Circuit noted that there is no presumption that such
limitations are impermissible but concluded that "[c]onditions that
unquestionably restrict otherwise inviolable constitutional rights may
properly be subject to special scrutiny to determine whether the limitation
does in fact serve the dual objectives of rehabilitation and public safety."
Id.  With these principles in mind we turn to the case on hand. (FN1)
     The disputed probation conditions satisfy the Whitchurch test.  The
requirement that defendant participate in a sex offender's group, is clearly
related to defendant's crime of lewd and lascivious behavior.  See State v.
Peck, 149 Vt. 617, 623, 547 A.2d 1329, 1333 (1988)("[c]ompletion of
counseling in a sex offender's group is reasonably related to the crime of
simple assault when the assault was of a sexual nature").  Moreover, since
the object of group therapy is preventing recidivism, the conditions require
conduct which is reasonably related to future criminality.  See id.
("participation in sex offender's counseling may serve to protect the public
against similar misconduct in the future").  Finally, the conditions are
related to defendant's criminal aberrant sexual behavior.  Accordingly, the
conditions satisfy the three prongs of Lent.
     We are satisfied that the conditions are not overly restrictive of
defendant's liberty and autonomy nor are they overly broad or vague.
Defendant claims that he should be permitted to continue counseling with his
pastor in place of participating in a sex offender's program.  The trial
court specifically found that "[t]he use of marital-type therapy and
general-type therapy of the defendant's choice broadens his responsibilities
and allows him to avoid facing responsibility for his specific offense, and
with dealing specifically with it."  There was substantial evidence to
support this finding in the record.  Thus, the alternative proposed by
defendant would not adequately protect the public against similar misconduct
in the future.
     Moreover, the court found that participation in group therapy is the
best method of reducing recidivism in sexual offenders.  This conclusion was
amply supported.  While some evidence was presented that the state is
studying the formation of alternative group therapy programs, no such
program has been approved and little information was presented about the
likely success of such a program.  Thus, the Windsor County sex-offender
program was the only available option.  The reduction of recidivism directly
serves the dual objectives of rehabilitation and public safety.
Accordingly, despite the alleged impact of the program on defendant's
federal and state constitutional rights to religious freedom, the probation
condition was valid under Mace and Consuelo-Gonzalez.
                                     II.
     Defendant next argues that he was denied his Sixth Amendment right of
confrontation because the trial court allowed two witnesses to recount
hearsay statements made by Paul Stewart of the Windsor County sex offender's
group.  The court admitted the statements pursuant to V.R.E. 1101, which
states that the rules of evidence other than those relating to privileges do
not apply to probation revocation hearings except as provided by statute or
rule promulgated by the Supreme Court.
     The contested hearsay was cumulative.  We need not decide whether
error occurred since we are convinced that introduction of the evidence did
not have the slightest effect in this case and was therefore harmless.  See
State v. Hunt, 150 Vt. 483, 494, 555 A.2d 369, 376 (1988)(where a gun
improperly introduced was cumulative evidence introduction was harmless).
The objectionable testimony recounted Dr. Stewart's conclusion that
defendant denied responsibility for his offense.  This conclusion, however,
was incorporated into a medical report by Dr. Ballantine and Dr. Stewart
that was admitted into evidence without objection.  Moreover, Dr.
Ballantine, Mr. Eck and  Ms. Edgerton all testified based on their own
individual examinations of defendant that he minimizes his responsibility
for the offense.  Accordingly, the introduction of Dr. Stewart's conclusion
through hearsay cannot serve as a basis for overturning the lower court's
order.
                                     III.
     Finally, defendant contends that certain of the trial court's findings
were clearly erroneous: first, that part of Finding 3 stating that "[t]he
defendant understood these [probation] conditions were agreements that he
was to follow," and second, Finding 12, which states that "[t]he use of a
penile plethesmograph [sic] and masturbation are not required in the group
and the defendant was told these methods were not to be used in the group."
Defendant's contention is twofold: first, that the plethysmograph and
masturbatory techniques were in fact part of the program to which he was
assigned, and second, that he had not been informed about these conditions
when he signed the probation agreement, only learning of the objectionable
requirements during the first group session.
     In State v. Peck, 149 Vt. at 619, 547 A.2d  at 1331, we stated that
"due process requires that a convicted offender be given fair notice as to
what acts may constitute a violation of his probation, thereby subjecting
him to loss of liberty."  Defendant is correct that there was considerable
evidence on the record supporting his contention that he had been concerned
the plethysmograph and masturbation might be used in the program.  The
testimony of both Mr. Eck and Ms. Edgerton support this contention.  But we
disagree that defendant was not given adequate notice of what the treatment
program for sex offenders would entail. It is important to distinguish the
initial probation agreement, which was signed as part of defendant's
sentencing on December 27, 1985, and the agreement to enter the Windsor
County program, which was undertaken on August 13, 1986.  Defendant knew
when he executed the initial probation agreement that he would be compelled
to participate in some rehabilitation program. It was clear that the
specifics of the program would be determined at a later time, since no
specific program was recited in the agreement and no specific course of
treatment identified.  After extensive evaluations were subsequently
conducted, defendant was not found suitable for programs existing before
the Windsor County sex-offender program was initiated.  Defendant was,
however, found suitable for this new program.  Mr. Eck testified that he
explained the details of the program to defendant before he agreed to sign
the treatment contract.  On cross-examination, Mr. Eck stated that he
supplemented the written agreement, which was nonspecific, with specific
information about masturbation and the penile plethysmograph.
     Consequently, defendant received a general warning from the text of his
probation agreement that he would be required to complete any rehabilitation
program chosen by his probation officer, which agreement was not to be
treated as "a straight-jacket that defies common sense." State v. Duffy, 151
Vt. 473, 478, 562 A.2d 1036, 1039 (1989).  Prior to signing the contract for
the Windsor County program, he received more specific information.  This is
similar to the timing and the contents of notices received by the defendant
in Peck, 149 Vt. at 620, 547 A.2d  at 1331, and more than suffices as due
warning to defendant of what was required of him as a probationer.  The fact
that he protested prior to signing the contract for the Windsor County
program buttresses the conclusion that he was then aware of its
objectionable aspects.  As late as August 13, 1986, he could have refused to
sign the agreement on the basis that it was inconsistent with his original
probation agreement.  The full facts reflect greater particularity in the
Windsor County program contract, but no inconsistency with the probation
agreement.
     Defendant also attacks the trial court's conclusion in Finding 12 that
defendant was told that the objectionable techniques would not be used.
Finding 12 is not supported by the Eck and Edgerton testimonies, and we
therefore conclude that this finding is erroneous.  The other findings and
evidence make it clear, however, that defendant was told of the possibility
of the use of penile techniques before signing the August 1986 treatment
agreement and that he later chose to abandon the prescribed treatment
program.  Therefore, the error in Finding 12 is harmless and does not taint
the court's conclusion that defendant violated a probation agreement
undertaken with full knowledge of the objectionable treatment possibilities.
     Defendant additionally attacks the court's findings negating the
importance of defendant's assertions that his concern over the use of the
plethysmograph and masturbatory techniques rendered him suicidal, and
specifically finding that "the defendant used the suicidal talk to avoid
treatment."  Defendant is correct that no witness testified that the talk of
suicide was a deliberate ruse to avoid treatment.  There was, however, ample
testimony that defendant had difficulty accepting authority, and in the
context of the complete findings, the court could decline to accept
defendant's position that he was concerned over suicidal tendencies and
conclude, on the record as a whole, that his principal motivation was to
avoid treatment.
     Affirmed.

                                        FOR THE COURT:




                                        Associate Justice



FN1.       We note that this case involves facially neutral conditions
having only an incidental impact on defendant's religious freedom.
Conditions which are themselves religious directly requiring or prohibiting
religious conduct may require analysis under traditional freedom of religion
standards.  See State v. Evans, 14 Kan. App. 2d 591, ___, 796 P.2d 178, 180
(1990)(probation condition requiring that defendant attend a specific church
and perform one thousand hours of maintenance work at that church invalid
where not justified by a compelling state interest); see also Jones v.
Commonwealth, 185 Va. 335, 343-45, 38 S.E.2d 444, 448-49 (1946)(probation
condition requiring that juveniles attend Sunday school and church for one
year invalid as a violation of the juveniles' freedom of religion).