State v. Dion

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. 89-153
 
 
State of Vermont                             Supreme Court
 
                                             On Appeal From
     v.                                      District Court of Vermont
                                             Unit No. 3, Orleans Circuit
 
Charles J. Dion                              February Term, 1990
 
 
Dean B. Pineles, J.
 
Jane Woodruff, Orleans County State's Attorney, Newport, and Rosemary Hull,
  Gary Kessler and Allison Hastings, Student Intern (On the Brief),
  Department of State's Attorneys, Montpelier, for plaintiff-appellee
 
Robert Katims of Martin & Paolini, Barre, for defendant-appellant
 
 
PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
 
 
     DOOLEY, J.   Defendant, Charles J. Dion, was convicted by a jury of
hindering a deputy game warden (Warden) in the execution of his law
enforcement duties, in violation of 13 V.S.A. { 3001.  Defendant appeals,
claiming two grounds for reversal:  (1) the lower court did not instruct
the jury that the "hindering" must be an illegal interference and, as a
result, failed to include an essential element of the charge; and (2) there
was insufficient evidence, even when viewed in a light most favorable to the
State, to prove that defendant was guilty beyond a reasonable doubt.  We
affirm.
     On October 4, 1988, the State filed an information (FN1) charging defendant
with hindering a law enforcement officer acting under the authority of the
State in the execution of his office, in violation of 13 V.S.A. { 3001.  At
trial, the prosecution called two witnesses:  the Warden involved, and a
warden-trainee.  They testified that defendant hindered them in the
performance of their duties as follows.  On April 23, 1988, the Warden was
patrolling the closed fishing area of the Clyde River, when, from his motor
vehicle, he noticed a person standing on a rock out in the water.  Using
binoculars, the Warden also observed another person, whom he recognized.
Both boys had rocks in their hands and were throwing them at the fish in the
river.  The Warden witnessed the unidentified boy throw a rock and kill a
fish.  He watched as the two boys walked back down the river toward a plank
bridge, where he proceeded down the hill to confront the boys and charge
them with a fish and game violation. (FN2)
     The Warden attempted to process the first boy "to get all the
information to write him a ticket."  The boy denied any wrongdoing, stating
"I didn't do anything.  You didn't see me do anything.  I didn't take any
fish."  Shortly thereafter, an older youth arrived and asked what was going
on.  The youth interceded and stated, "Why don't you leave him alone -- and
get out of here."  The youth became more vociferous as things progressed and
told the Warden, "I'll deck you, it won't bother me."
     Soon thereafter, defendant, an adult male, arrived on the scene.  He
asked the youth, "What's going on?"  After finding out the details,
defendant told the Warden to "get the hell out of here.  You got nothing on
him, leave him alone."  The Warden responded, "Please, sir, stay out of
this.  This doesn't concern you, it's a Fish & Game violation."  Defendant
continued to threaten the Warden and stated, "You're on my territory now.
Get the hell out of here.  I'll get your ass, and I'll get your ass good."
     The Warden also testified that as the atmosphere became more heated, he
again told both defendant and the older youth to "mind their own business,"
but they failed to pay any attention to that warning.  The Warden then put
his hand on the arm of the boy who had killed the fish in an effort to
escort him back to his truck for processing.  Both defendant and the older
youth interceded, stating, "He's not going anywhere with you," and
physically pulled the boy away from the Warden.  Since it was his opinion
that the matter had escalated beyond control, the Warden then radioed for
assistance.
     The warden-trainee arrived in response to the call, and observed a
confrontation going on where two men were waving their arms in the air.
These two men were later identified as the older youth and the defendant.
The warden-trainee also testified that defendant said, "Get out of here.
You don't have anything on him.  You're not taking him anywhere."
     More persons assembled at the scene, including a Newport police
officer.  The situation calmed down until another individual physically
pushed the Warden back with his chest.  Thereafter, the Warden was finally
able to take the boy over to the truck for processing.
     After the State rested, the defendant put on a number of witnesses,
including most of the persons present at the scene, to testify that
defendant never threatened the Warden.  They also testified that the boy
pulled away from the Warden without help from the defendant.
     Following the testimony, a charge conference was held, where the trial
judge proposed the following charge:
         The state must prove beyond a reasonable doubt that
         Charles Dion, number one, hindered; two, a law enforce-
         ment officer; three, while the law enforcement officer
         was acting under the authority of the State; and that
         four, Dion knew or reasonably should have known that the
         person was a law enforcement officer acting under the
         authority of the State; and five, knew or reasonably
         should have known that his, Dion's, conduct would hinder
         the officer; and that six, Dion had no legal right to
         hinder the officer.
The State objected to part six of the proposed instruction, arguing that
lack of legal right was not an element of the offense since it was not set
forth in the statute, 13 V.S.A. { 3001.  The trial judge agreed that the
lack of legal right was not relevant and eliminated the sixth element from
the jury charge.  The final jury charge read:
         The state must prove beyond a reasonable doubt that Mr.
         Dion, at the time and place charged, hindered a law
         enforcement officer while the law enforcement officer
         was acting under the authority of the State, and that
         Mr. Dion knew or reasonably should have known that the
         person was a law enforcement officer acting under the
         authority of the state, and knew or reasonably should
         have known that his, Mr. Dion's, conduct would hinder
         the officer.
The trial judge then went on to give the dictionary definition of the term
"hinder:"
         Means to slow down or to make more difficult someone's
         progress towards accomplishing an objective; to delay,
         or impede or interfere with that person's progress.
     Defendant was convicted by the jury and was sentenced to an underlying
prison term of six to twelve months, all suspended except for 15 days.  The
trial judge also sentenced defendant to perform twenty-five hours of
community service and to pay a fine of $200 or, alternatively, to donate
$100 to a fish and game organization.  Finally, defendant was ordered not to
contact or harass the Warden.
     Defendant's first argument is based on the jury charge.  He contends
that the trial court erred in failing to instruct the jury that they could
convict only if he had no legal right to hinder the officer, because this
omission left out an essential element of the offense.
     Although defendant was aware of the issue from the charge conference,
and was afforded the opportunity to object after the charge, he failed to do
so.  V.R.Cr.P. 30 provides that "[n]o party may assign as error any portion
of the charge or omission therefrom unless he objects thereto before the
jury retires to consider its verdict."  Since defendant did not object to
the jury instruction, he failed to preserve this issue, unless it rises to
the level of plain error.  See V.R.Cr.P. 52(b); State v. Ross, ___ Vt. ___,
___, 568 A.2d 335, 339 (1989).  This rule applies even where the charge
omits an essential element of the offense.  See State v. Roy, 151 Vt. 17,
23, 557 A.2d 884, 888 (1989).  Under the plain error standard, a conviction
will be overturned only in rare and extraordinary cases where the error in
the trial court's charge so affects the substantial rights of the defendant
that it would be unjust to ignore it.  Id.
     Defendant's position is correct:  illegal interference is an element of
the crime.  As we recently stated:
         "We regard the test as being one of whether or not the
         respondent has a legal right to take the action which
         results in impeding the officer.  If he does have that
         right, its exercise is not prohibited by the statute.
         Only when he has no such right can his actions be an
         unlawful hindrance."
State v. Harris, ___ Vt. ___, ___, 568 A.2d 360, 360-61 (1989) (quoting
State v. Buck, 139 Vt. 310, 313, 428 A.2d 1090, 1093 (1981)).  Although an
element was omitted, we cannot find plain error.  As we noted in Roy:  "'An
omission, or an incomplete instruction, is less likely to be prejudicial
than a misstatement of the law.'"  Roy, 151 Vt. at 23, 557 A.2d  at 888
(quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)).
     The defense here was that defendant did not make the threats attributed
to him and did not pull the boy from the Warden.  The court charged that the
jury had to find that defendant threatened the Warden and that those threats
hindered the Warden in processing the boy for a fish and game violation.
The court emphasized that "mere questioning or mere argument" would not be
enough.  In view of the charge, we fail to see how defendant was prejudiced
by the omission of the legal right element.  While defendant argues that he
defended based on his right to question the Warden, he does not claim that
he had a right to threaten the Warden with physical violence to prevent him
from processing the boy for a fish and game violation.  Yet, the charge,
read as a whole, clearly required the jury to find defendant made such a
threat.  There is no plain error.
     Defendant next argues that the evidence was insufficient to convict
him, especially since he asserts that he had a legal, if not constitutional,
right to engage in the conduct for which he was convicted.  Defendant has
also failed to preserve this issue.  In order to preserve a claim of
insufficiency of the evidence, defendant must make a motion in the trial
court for judgment of acquittal under V.R.Cr.P. 29(a) at the close of the
evidence.  See State v. Norton, 139 Vt. 532, 534, 431 A.2d 1244, 1245
(1981).  Here, defendant failed to move for acquittal either at the close of
the State's case or at the close of all of the evidence.
     As with the first issue, we can reverse on a finding of plain error.
See State v. Cole, 150 Vt. 453, 455, 554 A.2d 253, 254 (1988).  We cannot
find plain error here.  The testimony of the two wardens was sufficient to
establish that defendant hindered the Deputy Warden.  Defendant's arguments
to the contrary represent an attempt to subvert this testimony because it
grounds defendant's conviction on speech protected by the First Amendment.
See City of Houston v. Hill, 482 U.S. 451, 458-66 (1987).  This argument is
itself raised for the first time on appeal. (FN3)  It ignores that the evidence
in this case showed that defendant physically interfered with the Warden's
action and used "fighting words."  See Id., 482 U.S.  at 465 (ordinance
prohibits speech beyond "fighting words"); Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1941) (fighting words by themselves inflict injury or tend to
incite an immediate breach of the peace); State v. Krawsky, 426 N.W.2d 875,
877 (Minn. 1988) (statute that prohibits fighting words and physical
obstruction is valid).
     Affirmed.
 
                                        FOR THE COURT:
 
 
 
 
                                        Associate Justice

FN1    The information originally stated that defendant "[d]id then and
there attempt to hinder a law enforcement officer."  This was amended on
February 28, 1989 to read "[d]id then and there hinder a law enforcement
officer."

FN2    The rock apparently killed a spawning walleye fish.  The Warden
testified that he was unsure of what charge would be issued.  He stated the
possible charges would be taking a fish by illegal means, fishing in a
closed area, "or depending on the license status, all of that."

FN3    Defendant never attacked the statute as overbroad or vague in the
trial court and never attempted to exclude evidence of protected speech or
obtain an instruction requiring the jury to exclude such speech.  Thus, the
constitutional issue is waived.  See, e.g., City of Grand Forks v. Cameron,
435 N.W.2d 700, 702 (N.D. 1989) (City of Houston v. Hill issue waived by
failure to attack ordinance in trial court).