State v. Crown

State v. Crown  (97-522); 169 Vt. 547; 726 A.2d 493

[Filed 29-Jan-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-522

                             NOVEMBER TERM, 1998


State of Vermont	              }	APPEALED FROM:
                                      }
                                      }
     v.	                              }	District Court of Vermont,
                                      }	Unit No. 3, Caledonia Circuit
Gregory Allan Crown	              }
                                      }	DOCKET NO. 479-5-97 CaCr


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

       Defendant Gregory Crown appeals his conviction after jury trial for
  violating a protection-from-abuse order, see 13 V.S.A. § 1030(a), claiming
  that (1) the state failed to prove defendant's  knowledge of the contents
  of the order, which defendant contends is an element of the crime as 
  defined by § 1030(a); (2) in light of his illiteracy, any conviction under
  § 1030(a) violates his  constitutional right to due process; and (3) the
  underlying order was void because of its  unspecified duration, thus
  fatally undermining the conviction.  We affirm.

       The facts are not in dispute.  Defendant has a history of violent
  behavior, threats, and  alcohol abuse.  After an incident in which
  defendant fired four shots into the paternal  grandparents' home,
  defendant's wife, Karen Crown, was granted an emergency relief-from-abuse 
  order.  The order included the following requirement: "Defendant shall not
  place [himself] within  500 feet of plaintiff individually or of the
  following address(es): her place of residence."  Ten  days later, the
  Caledonia Family Court held a hearing at which both parties were present. 
  The  court issued an extended temporary order for relief from abuse and
  caused it to be served on  defendant at the hearing.  The order included
  the same requirement of staying away from Karen  Crown or her residence
  although it allowed defendant to be within 500 feet of the residence for 
  purposes of visitation.

       Defendant is illiterate. He did not inform the family court of this
  fact, nor did he request  that the extended relief-from-abuse order be read
  to him.  After the family court hearing,  defendant's sister read the
  contents of the extended order to him, but defendant claims that his 
  sister failed to read the section that prohibits him from going within 500
  feet of Karen Crown's  residence.

       On May 28, 1997, defendant went within 500 feet of the residence to
  meet with a potential  buyer of certain heavy equipment he owned but had
  left at the residence.  Karen Crown returned  home, and defendant promptly
  left.  When later interviewed by a state trooper, defendant told the 
  officer that he knew of the 500 foot restriction, but did not specify
  whether he understood himself  to be restricted from Karen Crown, or the
  residence, or both.  Defendant was charged with  violating the order, and
  on November 4, 1997, was found guilty.  This appeal followed.

       Defendant's first contention is that because the State did not produce
  evidence that he had  knowledge of the contents of the order, it did not
  prove all elements of the crime.  The knowledge  element is critical, he
  argues, because he could not read the order himself.   The applicable 
  statute, 13 V.S.A. § 1030(a), provides in relevant part:

 


     A person who commits an act prohibited by a court or who fails 
     to perform an act ordered by a court in violation of an abuse 
     prevention order under chapter 21 of Title 15 or chapter 69 of 
     Title 33, after the person has been served notice of the contents 
     of the order as provided in those chapters; or a foreign abuse 
     prevention order issued by a court in any other state, federally 
     recognized Indian tribe, territory or possession of the United 
     States, the Commonwealth of Puerto Rico or the District of 
     Columbia; shall be imprisoned not more than one year or fined 
     not more than $5,000.00, or both.

  13 V.S.A. § 1030(a) (emphasis added).  A relief-from-abuse order "shall be
  served in accordance  with the rules of civil procedure."  15 V.S.A. §
  1105(a).  Nothing in the Vermont Rules of Civil  Procedure impose upon the
  State, or any other party with occasion to serve process on an  adversary,
  the responsibility of ascertaining whether or not the party served is
  literate.  See  V.R.C.P. 4 (setting forth procedure for service of
  process).  Nor do the rules require service to  include a reading of the
  order.  It is undisputed that defendant was served with the abuse 
  prevention order in accordance with the statute.

       We decline to hold that in a prosecution under § 1030(a), the State
  must prove that  defendant understood the requirements of the abuse
  prevention order.  The determination of the  elements of the crime is
  primarily a matter of statutory construction.  See State v. Mott, 166 Vt. 
  188, 196, 692 A.2d 360, 365 (1997).  In Mott, defendant argued that §
  1030(a) required the state  to prove that he intended to violate the abuse
  prevention order.  We rejected the argument,  concluding that, consistent
  with the purpose of the abuse-prevention law to make relief readily 
  available to victims of domestic violence, an abuser cannot "escape
  criminal liability . . . by  refusing to read [the abuse order] and
  remaining unaware of its terms."  Id. at 197, 692 A.2d  at  366.  We held
  that "defendant has the responsibility to read and understand the order,
  and  conform his conduct to it," id., and cannot defend on the basis that
  he did not intend to violate  the order.

       The statutory language requires the State to prove only that defendant
  violated the order  after it was properly served upon him.  There is no
  requirement in the language that defendant  know that his conduct would
  violate the order, id. at 196, 692 A.2d  at 366, or that he fully 
  understand the requirements of the order.  Although the Legislature could
  have required that the  order be read to defendant, it relied instead on
  warnings framed in large, bold letters in the order.  See id.; 15 V.S.A. §
  1103(i).  We conclude that the reasoning of Mott requires that we reject 
  defendant's argument.

       Defendant's second argument is related to his first.  He contends that
  his illiteracy interfered  with his ability to receive notice and that his
  conviction without proper notice denied him due  process of law.  We agree
  that due process requires that defendant have notice of the order he was 
  alleged to have violated.  See, e.g., United States v. Cutler, 58 F.3d 825,
  834 (2d Cir. 1995); In  re Seelke, 680 P.2d 288, 290 (Kan. 1984); see also
  State v. Goyette, 166 Vt. 299, 303-04, 691 A.2d 1064, 1067 (1997)
  (defendant could not be convicted of violating § 1030 based on non-
  compliance with overly-broad provision of abuse prevention order).  We
  believe, however, that  service of the order upon him was sufficient to
  meet the requirements of due process of law, even  though he was unable to
  read the terms of the order.  See Commonwealth v. Olivo, 337 N.E.2d 904,
  909-10 (Mass. 1975) (Spanish-speaking defendant charged with violating
  order of housing  department not denied due process because order was only
  in English); Vialez v. New York  Housing Auth., 783 F. Supp. 109, 119-21
  (S.D.N.Y.1991) (same, collecting cases).  We adopt  the standard of Olivo: 


 

  [W]here a party actually receives notice which would be constitutionally 
  sufficient if [t]he party were not under a disability, that notice is 
  constitutionally sufficient as to a person actually under a disability
  if:(1)  it would put a reasonable person on notice that inquiry is
  required, (2)  further inquiry would reveal the facts necessary to
  understand the nature  of the proceeding and the opportunity to be heard,
  and (3) the party's  disability does not render him incapable of
  understanding the need for  such inquiry.

  Olivo, 337 N.E.2d  at 909.  Applying the Olivo standard to this case, we
  find no violation of due  process.  The service of the order on defendant
  should have put him on notice that he needed to  know its terms and comply
  with them.  His illiteracy did not render him incapable of  understanding
  this need.  It was his responsibility to have all the terms of the order
  read to him.

       Defendant's final argument is that the extended order was void because
  the duration was  indefinite.  We do not generally allow a person who is
  under a court order to challenge it by  violating it.  See Mott, 166 Vt. at
  191, 692 A.2d  at 363.  Defendant argues, however, that the  abuse
  prevention statute requires that an order contain a fixed durational period
  and that an order  issued without a fixed period is outside the
  jurisdiction of the family court.  Defendant contends  that, because the
  family court exceeded its jurisdiction, he can raise invalidity as a
  defense to the  criminal prosecution.  See State v. Putnam, 137 Vt. 410,
  413, 407 A.2d 161, 163 (1979)  (allowing defendant to attack license
  suspension order collaterally on jurisdictional grounds).

       The family court has jurisdiction to issue abuse prevention orders. 
  Here, as in Mott, the  alleged defect in the order was not jurisdictional
  and defendant therefore could not raise it as a  defense to the criminal
  prosecution for violating the order.  See Mott, 166 Vt. at 194, 692 A.2d  
  at 364 (failure of family court to support abuse prevention order by
  findings, as required by  statute, is not a jurisdictional defect that can
  be collaterally attacked as a defense to a criminal  prosecution for
  violation of the order).

       Affirmed.

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