State v. Premo

State v. Premo  (96-424); 168 Vt. 600; 719 A.2d 398

[Filed 18-Aug-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-424

                               JUNE TERM, 1998


State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont,
                                }     Unit No. 2, Chittenden Circuit
Dennis Premo                    }
                                }     DOCKET NO. 980-3-96CnCr


               In the above-entitled cause, the Clerk will enter:

       In this prosecution for violation of an abuse prevention order, the
  State has taken an interlocutory appeal challenging the jury instruction
  the district court proposed to give to define "harassment."  The State
  charged that defendant harassed the victim in violation of an abuse
  prevention order that prohibited harassment.  The court ruled that it would
  instruct the jury that violation of an abuse prevention order is a specific
  intent crime and that the definition of harassment contained in 13 V.S.A. §
  1061(4) would apply.  The State offered no alternative definition of
  harassment, arguing that the jury should be instructed to apply the term
  "based on its common sense meaning."

       Defendant, who is represented by retained counsel, has declined to
  file a brief in this case.  The case was presented to the Court on briefs
  approximately nineteen months after permission for interlocutory appeal was
  granted by the district court.

       In State v. Goyette, 166 Vt. 299, 304, 691 A.2d 1064, 1067 (1997), in
  which defendant successfully appealed a criminal violation of an abuse
  prevention order conviction, we held that the definition of harassment
  charged to the jury was too broad and added:

     We decline defendant's request that we mandate a specific
     definition of harassment . . . . A definition of harassment could
     conceivably vary depending on the circumstances of individual
     cases.

  We are similarly unwilling to mandate a specific definition here.  Although
  we have before us the police officer's affidavit accompanying the
  information, there has been no evidence heard to show the circumstances of
  the case.  Further, the State has refused to offer any alternative
  definition of harassment, and the advocacy to us is entirely one-sided
  because defendant has not filed a brief.

       We conclude that the posture of this case makes it inappropriate for
  interlocutory review. See State v. Dubois, 150 Vt. 600, 603, 556 A.2d 86, 88 (1988).  We reluctantly conclude that permission for interlocutory
  review was improvidently granted.

 


       Appeal dismissed.







                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn S. Skoglund, Associate Justice