State v. Goyette

State v. Goyette  (96-067); 166 Vt. 299; 691 A.2d 1064

[Filed 28-Feb-1997]

       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                     No. 96-067


State of Vermont                                  Supreme Court

                                                  On Appeal from
     v.                                           District Court of Vermont,
             					  Unit No. 2, Addison Circuit

Timothy Goyette                                   January Term, 1997


Michael S. Kupersmith, J.

       Sandra W. Everitt, Addison County Deputy State's Attorney, Middlebury,
  for plaintiff-appellee

       Thomas C. Nuovo of Nuovo, Gale & Fuller, P.C., Burlington, for
  defendant-appellant


       PRESENT:        Gibson, Dooley, Morse and Johnson, JJ., and Allen,
  C.J. (Ret.), Specially Assigned



       JOHNSON, J.   Defendant, who was found guilty of violating a final
  relief-from-abuse order that had incorporated a stipulation prohibiting him
  from abusing or harassing his estranged wife, appeals the conviction on the
  grounds that the underlying order was invalid and that the trial court
  erred in instructing the jury on the definition of harassment.  We conclude
  that the court's instruction requires reversal of the conviction.

       Defendant and the complainant were married in 1983 and had three
  children before separating in September 1993, at which time a temporary
  relief-from-abuse ordered was issued against defendant.  As the result of
  incidents occurring during this period of separation, defendant was charged
  with domestic assault and with violating the temporary abuse-prevention
  order.  At the final relief-from-abuse hearing on October 12, 1993,
  defendant and the complainant, who were both represented by counsel,
  presented the family court with a stipulation (1) stating that defendant
  "shall be prevented and restrained for a period of one year from directly
  or indirectly harassing or abusing" the complainant; (2) establishing a
  schedule for temporary joint custody

 

  of the children; (3) making a temporary distribution of the parties' real
  estate and personal property; and (4) requiring the parties to attend
  various types of counseling.  The stipulation was incorporated by reference
  into the family court's final relief-from-abuse order.  In January 1994,
  defendant pled no contest to the charges of domestic assault and violation
  of the temporary relief-from-abuse order.

       In July 1994, defendant was charged with violating the final
  relief-from-abuse order by making harassing statements and threatening
  phone calls to the complainant on several occasions in late June and early
  July 1994.  After the district court denied his motion to dismiss and
  rejected a plea agreement reached by him and the State, defendant withdrew
  his no-contest plea. Following a two-day trial, a jury found defendant
  guilty of violating the final abuse-prevention order.  The district court
  ordered defendant to serve four months in jail, to be followed by a two-
  and-one-half-year probationary period, during which time he would be
  subject to numerous conditions dealing with counseling, substance abuse,
  and contact with the complainant.  On appeal, defendant argues that (1) the
  final relief-from-abuse order was defective because the family court failed
  to make findings that he had abused the complainant; (2) he was improperly
  prosecuted for and convicted of acts beyond the scope of the
  abuse-prevention statute; and (3) the definition of harassment contained in
  the district court's jury charge was overly broad and thus could have
  resulted in the jury convicting him for legitimate acts.

       Defendant was convicted of a felony for violating a provision in a
  final relief-from-abuse order that incorporated by mere reference a
  stipulation dealing with not only harassment and abuse, but also parental
  rights and responsibilities, property distribution, and counseling.  The
  family court incorporated the stipulation into its final abuse-prevention
  order without finding that defendant had abused the complainant or that the
  harassment provision in the stipulation was necessary to prevent future
  abuse.  Thus, the sole basis for the felony criminal prosecution against
  defendant was a stipulation that did not confirm prior abuse and that dealt
  primarily with issues more properly reserved for divorce or other custody
  proceedings.  See Rapp v. Dimino,

 

  162 Vt. 1, 5, 643 A.2d 835, 837 (1993) (abuse-prevention statute is aimed
  at providing immediate relief for abuse victims, not at determining the
  parties' rights with respect to custody, support, or property; expedited
  nature of abuse hearings are ill-suited for custody determinations not
  involving abuse of children).

       On appeal, the same attorney who agreed to the stipulation and offered
  it to the family court in the abuse proceedings now argues that the court
  did not have authority to adopt the stipulation in its final
  relief-from-abuse order.  We have recently held that defendants may not
  collaterally attack abuse-prevention orders that they have been accused of
  violating, except on the basis of jurisdictional defects.  State v. Mott, 8
  Vt. L.W. 13, 14 (1997).  Thus, defendant's claim that the family court
  improperly relied on the parties' stipulation rather than making
  appropriate findings to support its final abuse-prevention order is an
  unpreserved and otherwise unavailing collateral attack on the underlying
  order.  Id. at 15 (failure to make findings in support of abuse-prevention
  order does not rise to level of jurisdictional defect that would allow
  collateral attack on order following prosecution for violation of order).

       Nor are we persuaded by defendant's contention that the State's
  information was invalid because it charged him with harassment, which he
  argues is beyond the scope of the conduct the abuse-prevention statute
  seeks to deter.  The statute permits the family court to issue any order
  that "it deems necessary to protect the plaintiff."  15 V.S.A. § 1103(c). 
  Such orders not only may require the defendant to refrain from abusing the
  plaintiff, but they also may require the defendant to refrain from
  interfering with the plaintiff's personal liberty, and may restrict the
  defendant's ability to contact the plaintiff or to come within a fixed
  distance of the plaintiff.  Id. § 1103(c)(1).  In short, a
  relief-from-abuse order may prohibit otherwise legitimate conduct to
  prevent future abuse, and that conduct may serve as the basis of a criminal
  conviction for violating the order.

       Nevertheless, when we consider the circumstances of this case in the
  context of the court's charge, we conclude that the conviction must be
  reversed.  During the trial, the State

 

  presented evidence of the following incidents concerning defendant's
  alleged harassment of the complainant.  On June 25, while returning the
  children to the complainant, defendant made derogatory comments concerning
  the complainant's love life and called her insulting names.  On June 27, he
  called the complainant twice and asked her why she left him, stating at one
  point: "I promised to be married till death do us part."  On July 9, after
  learning that the complainant was planning to relocate to California with
  the children, defendant told her during a telephone call that he would
  fight her "forever" for custody of the children and would kill her before
  letting her have the children full time.  On July 10, he made an unexpected
  and unwanted appearance at the beach and interfered with the complainant's
  time with the children.  On July 14, he telephoned the complainant at 6:14
  a.m. to complain about the shoes she had purchased for one of the children. 
  On July 16, when the complainant arrived to pick the children up early, as
  he had requested, he made insulting comments about her lifestyle and love
  life.  Finally, on July 19, he called the complainant early in the morning
  with questions about babysitters and insurance.

       The family court instructed the jury that defendant had been charged
  with harassing the complainant by making harassing statements and
  threatening phone calls in June and July 1994. The court defined the word
  "harass" as "to engage in repeated acts which trouble, worry, torment,
  disturb or threaten another."  After thus defining harassment, the court
  told the jurors that before they could find defendant guilty, they would
  have to agree unanimously that he committed at least one of the six or so
  acts alleged by the State, and that the one act, in concert with all of the
  evidence heard, harassed the complainant.

       Accordingly, under the court's instruction, the jurors could have
  convicted defendant, at a minimum, based on their unanimous conclusion that
  (1) only one of the several acts alleged by the State -- say defendant's
  disruptive visit to the beach or his early morning phone call regarding
  babysitting concerns -- occurred, and (2) the visit or the phone call
  amounted to harassment because it troubled or disturbed the complainant. 
  The only unanimity required by the instruction was that one of the six acts
  occurred; the court's charge did not assure unanimity

 

  among the jurors as to whether some or all of the other acts occurred.  Cf.
  State v. Couture, 146 Vt. 268, 272, 502 A.2d 846, 849 (1985) (trial court
  committed plain error by giving charge that did not assure jury's unanimity
  regarding essential element of crime of kidnapping).

       Further, under the court's broad definition of harassment, 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 for violating the relief-from-abuse order.  We recognize
  that defendant had previously pled no contest to violating the temporary
  abuse-prevention order by engaging in harassing conduct, and thus should
  have been aware of the limitations placed on his behavior.  But we also
  recognize that the parties were sharing parental rights and
  responsibilities during an acrimonious period preceding their divorce, and
  thus regular contact and some amount of disagreement between the parties
  was inevitable.

       In short, the court's broad definition of harassment permitted
  defendant to be convicted on the basis of virtually any behavior that
  bothered the complainant.  We conclude that the court's instruction was
  reversible error under the circumstances.  Although the alleged acts, taken
  together, could have supported the jury's verdict, the court's instruction
  required far less to convict defendant.

       We decline defendant's request that we mandate a specific definition
  of harassment requiring the jury to find that the alleged acts were
  committed for no legitimate purpose and caused the complainant emotional
  distress.  A definition of harassment could conceivably vary depending on
  the circumstances of individual cases.

       Reversed and remanded.

                                       FOR THE COURT:

                                       ________________________________________
                                       Associate Justice