State v. Malshuk

State v. Malshuk  (2003-243); 177 Vt. 475; 857 A.2d 282

2004 VT 54

[Filed 09-Jun-2004]


                                 ENTRY ORDER

                                 2004 VT 54

                      SUPREME COURT DOCKET NO. 2003-243

                             JANUARY TERM, 2004

  State of Vermont                   }     APPEALED FROM:
                                     }
                                     }
       v.                            }     District Court of Vermont,
                                     }     Unit No. 3, Orleans Circuit     
                                     }     
  Dennis Malshuk, II                 }
                                     }     DOCKET NO. 452-7-02Oscr

                                           Trial Judge: Walter M. Morris

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

       ¶ 1     Defendant appeals from his conviction for violating an abuse
  prevention order by following his ex-girlfriend.  Defendant asserts that
  the Orleans District Court erred by (1) violating "the law of the case" by
  changing its definition of "following" from the first trial which resulted
  in a hung jury, (2) instructing the jury that "following" included
  consciously placing oneself in physical proximity of another, (3) denying a
  motion of acquittal because of insufficient evidence to support the
  verdict, and (4) excluding evidence of victim's angry outburst at the
  defendant.  We affirm. 

       ¶ 2     The issues presented in this appeal arose from an encounter in
  Newport between defendant and his ex-girlfriend, Lori Libbey, who had
  previously obtained an abuse prevention order against defendant,
  prohibiting him from stalking, following, or coming within 100 feet of her. 
  On the early evening of May 14, 2002, Libbey was picking up her children
  from day care, when defendant's current girlfriend, Donna Grondin, drove by
  in defendant's truck.  Defendant was a passenger in the vehicle.  After
  taking several minutes to get the children settled in her vehicle, Libbey
  drove to the Main Street intersection and found that defendant's truck was
  there.  As Libbey pulled up behind the truck, the truck drove off, with
  defendant staring out the back window at Libbey. 
   
       ¶ 3     Libbey stopped at her brother's Newport residence to seek his
  advice.  While she was speaking with her brother outside of his house,
  defendant and Donna Grondin drove by several times. Libbey's brother
  advised her to drive home and to call the police if necessary.  As she
  drove home, Libbey saw defendant's truck drive up behind her.  She turned
  onto Route 5, and then pulled off at a rest area to let defendant pass. 
  After waiting for a minute or two, Libbey pulled on to the highway and
  drove slowly to avoid catching defendant.  Nevertheless, she soon came up
  behind defendant's vehicle, and while following behind him, defendant threw
  a beer bottle out of the window.

       ¶ 4     Libbey was stopped by a police officer after Grondin called to
  report that Libbey was driving with a suspended license.  The police
  officer who responded to the call found Libbey upset and crying.  He
  verified that her license was valid and went on to question defendant, whom
  he found buying beer at a local store.

       ¶ 5     Donna Grondin testified that she and defendant were running
  errands while these events were transpiring, including looking for
  defendant's grandmother around Newport, buying meat scraps for their dogs,
  and stopping at a store to make a payment on defendant's account.  Grondin
  also testified that defendant threw the beer bottle out of the window
  because they often throw bottles to a man who collects them from the side
  of the road.  Grondin further explained that defendant and Libbey were
  engaged in a custody battle over their child, and that the guardian ad
  litem had instructed them to call the authorities if they saw Libbey
  operating without a license.  Grondin testified that she had telephoned the
  authorities from a cell phone to report Libbey because she and defendant
  believed that Libbey did not have a valid driver's license.  Grondin made
  two or three calls, reporting Libbey's current location at each respective
  time.  

       ¶ 6     Defendant was charged with violation of an abuse prevention
  order, second offense. 13 V.S.A. § 1030(b).  In the first trial, the jury
  was instructed that "following" meant "to go after, to proceed after or to
  come after, to pursue in an effort to overtake."  The trial resulted in a
  hung jury.  At the second trial, upon the State's request, the judge
  altered the instruction to add that following could also mean, in addition
  to the previous definition, "consciously maintain physical proximity
  nearness with another person over a period of time or distance . . . ." 
  The jury found defendant guilty.  Defendant moved for acquittal alleging
  first, that the trial court erred in its definition of "following," and
  second, that the verdict was not supported by sufficient evidence.  The
  trial court denied the motion, and this appeal followed. 

       ¶ 7     Defendant first claims that the trial court erred in changing
  the definition of "follow" from the first trial to the second, and in
  denying the motion for acquittal to correct that error.  Defendant argues
  that this change violated the "law of the case."  Because defendant failed
  to object to the jury instruction, this issue has not been preserved for
  appeal.  See State v. Dunbar, 172 Vt. 557, 559, 772 A.2d 533, 536 (2001)
  (mem.); State v. Koch, 171 Vt. 515, 517-18, 760 A.2d 505, 507 (2000)
  (mem.).  In any event, the "law of the case" doctrine is a discretionary
  rule of practice, not a rule of law, and "in a proper case," the trial
  court may depart from the doctrine.  Morrisseau v. Fayette, 164 Vt. 358,
  364, 670 A.2d 820, 824 (1995). 
        
       ¶ 8     Defendant next claims that the trial court erred in
  instructing the jury that the legal definition of "following" included
  placing oneself in physical proximity of another, and that such  definition
  renders the abuse prevention order's additional prohibitions superfluous. 
  The abuse prevention order states, in pertinent part, "[d]efendant shall
  not follow or stalk;" or "place himself within 100 feet" of Libbey. 
  Defendant argues that the definition given for following renders the other
  two prohibitions superfluous because it is so broad that it encompasses
  stalking and entering the 100-foot zone.

       ¶ 9     Because defendant failed to object to the instructions at the
  proper time, after the instructions were given, we will review the claims
  for plain error only.  See State v. Tahair, 172 Vt. 101, 104-05, 772 A.2d 1079, 1082 (2001); State v. Carpenter, 170 Vt. 371, 374, 749 A.2d 1137,
  1139 (2000).  Jury instructions will be "viewed in their entirety and must
  be well balanced and fair." State v. Brooks, 163 Vt. 245, 250, 658 A.2d 22,
  26 (1995).  This Court will find plain error "only when the entire charge
  undermines our confidence in the verdict, and only in extraordinary cases." 
  Id.  

       ¶ 10     There was no plain error. Under the abuse prevention order,
  defendant was precluded from following, stalking, or entering a buffer zone
  of 100 feet of Libbey.  The trial court incorporated part of the definition
  of following from the stalking statute noting that the definition reflected
  the Legislature's belief that following could occur from any direction, not
  only from behind.  Thus, the definition does not render the other
  provisions superfluous because one could stalk another without following,
  as stalking is also defined as "[engaging] in a course of conduct which
  consists of . . .  lying in wait or harassing, and . . . caus[ing] the
  person to fear for his or her physical safety or caus[ing] the person
  substantial emotional distress." 13 V.S.A. § 1061(1)(B).  Similarly, it
  would be possible to follow someone without entering the buffer zone and to
  enter the buffer zone without following.  For example, if defendant had
  stopped and approached within 100 feet of Libbey when she was at her
  brother's residence, defendant could  have been charged with entering the
  buffer zone. Conversely, as in this case, defendant could be charged with
  following without entering the buffer zone.  The trial court's definition
  of following did not render the prohibitions against stalking and entering
  the buffer zone superfluous. 

       ¶ 11     Defendant next contends that the trial court erred in denying
  his motion for acquittal. Defendant argues that even if the definition of
  following is correct, the trial court erred in denying the motion for
  acquittal because the State did not produce sufficient evidence to support
  the verdict.

        
       ¶ 12     On review of a V.R.Cr.P. 29 motion for acquittal, we
  determine "whether the evidence, when viewed in the light most favorable to
  the State and excluding any modifying evidence, fairly and reasonably tends
  to convince a reasonable trier of fact that the defendant is guilty beyond
  a reasonable doubt."  State v. Prior, 174 Vt. 49, 53, 804 A.2d. 770, 773
  (2002) (internal quotations omitted). Viewing the evidence in a light
  favorable to the State, there was enough evidence for a reasonable jury to
  conclude that defendant's conduct constituted following.   The State
  produced evidence to show that the truck in which defendant was a passenger
  passed Libbey several times while she was talking with her brother.  Later,
  when defendant appeared behind Libbey on Route 5, she pulled over to let
  his vehicle pass.  Despite proceeding slowly,  Libbey did catch defendant's
  truck, which appeared to have slowed down.  Defendant's vehicle remained in
  proximity to Libbey's for several miles, and defendant threw a beer bottle
  out the window toward Libbey.  Moreover, the jury was the sole judge of the
  credibility of the witnesses and was free to weigh the testimony before it,
  including the testimony of defendant's girlfriend that she and defendant
  were merely running errands and all contact with Libbey was coincidental. 
  See State v. Norton, 134 Vt. 100, 103, 353 A.2d 324, 326 (1976)
  (credibility of witness and weight given to their testimony is the sole
  province of the jury).  A reasonable jury could conclude on the basis of
  the evidence before it that defendant had violated the abuse prevention
  order by following Libbey, as the term was defined in the jury
  instructions.

       ¶ 13     Defendant's final claim is that the trial court erred in
  excluding a "violent and threatening" outburst by Libbey against defendant
  made outside the courthouse.  This incident occurred three months after the
  encounter at issue in this case, and eight months before the trial.  Libbey
  allegedly told defendant that "he was going down," he should go to jail,
  and that he would never see the light of day or his daughter again.  The
  State made a motion in limine to exclude these statements as irrelevant and
  likely to confuse the jury by creating an evidentiary side issue.  See
  V.R.E. 401, 403.  The State further notified the court that if the
  statements were admitted to impeach Libbey's credibility, the State would
  seek to introduce evidence of defendant's prior assaults on Libbey, which
  the trial court had previously excluded.  The judge granted the State's
  motion to avoid "opening the door" to admission of defendant's prior acts. 
  The court explained that "[c]ross examining an alleged victim as to why
  they don't like a person or has ill will [toward] a person opens the door
  for [an] explanation of why."

       ¶ 14     We have previously held that where defense counsel seeks to
  impeach a witness's credibility "by painting an incomplete picture of
  unwarrranted bias," the State may complete the picture with "appropriate
  detail."  State v. Recor, 150 Vt. 40, 44, 549 A.2d 1382, 1386(1988); State
  v. Crannell, 170 Vt. 387, 406, 750 A.2d. 1002, 1017 (2000).  Thus, we agree
  with the trial court that the use of Libbey's outburst for impeachment
  purposes would open the door for the State to use defendant's  prior acts
  to "complete the picture."  Nevertheless, we agree with defendant that the
  court erred in finding the statements inadmissible on that basis.  The
  decision of whether to introduce evidence of the victim's comments, with
  the potential consequence of defendant's prior bad acts being admitted by
  the State, was a strategic decision for the defense counsel to make, not
  the court.  If defendant wanted to take the risk that the State would use
  his prior bad acts to explain the impeachment evidence, there is no rule
  barring such action State v. Fuller, 168 Vt. 396, 407, 721 A.2d 475,
  483-484 (1998).  We must determine, however, whether the court's ruling
  constituted reversible error.  We treat the damaging potential of the
  excluded impeachment evidence as fully realized, and if it is clear beyond
  a reasonable doubt that defendant would have been found guilty even if the
  proferred evidence had been admitted, the court's ruling will be deemed
  harmless error.  Id. at 407-08, 721 A.2d  at 484.
        
       ¶ 15     Although "wide latitude should be allowed on
  cross-examination for the purpose of showing who and what the witness is,
  and that he is unreliable, prejudiced, or biased,"  State v. Berard, 132
  Vt. 138, 147, 315 A.2d 501, 508 (1974),  Libbey's possible bias had little
  relevance in this case.  The main issue for the jury to decide was whether
  defendant was intentionally following Libbey or, as defendant claimed, any
  contact was a mere coincidence.  Libbey's testimony was not regarding
  defendant's intent, to which she would not have been allowed to testify,
  but rather to the facts of her encounter with defendant.  Defendant
  acknowledges, however, that, although the parties dispute the others'
  motivation and intent, "[t]he overall factual scheme adduced at trial is
  relatively undisputed."  Here, witness credibility was not "a pivotal issue
  bearing on defendant's guilt."  State v. Cartee, 161 Vt. 73, 77, 632 A.2d 1108, 1111 (1993).  Defendant does not dispute that on the day iuestion he
  had encountered Libbey several times, that he had thrown a bottle out of
  the vehicle, and that his girlfriend called the State police several times
  reporting Libbey's current location at each respective time.  All that was
  left to the jury was the determination of whether it is possible to infer
  intent from those actions.  Given the marginal relevance of the excluded
  statements to this determination, it is clear beyond a reasonable doubt
  that defendant would have been found guilty even if the statements had been
  admitted, and therefore their exclusion was harmless error.  See Fuller,
  168 Vt. at 407-08, 721 A.2d  at 483-484. 

       Affirmed.



       BY THE COURT:



       _______________________________________
       Jeffrey L. Amestoy, Chief Justice

       _______________________________________
       John A. Dooley, Associate Justice

       _______________________________________
       Denise R. Johnson, Associate Justice

       _______________________________________
       Marilyn S. Skoglund, Associate Justice

       _______________________________________
       Paul L. Reiber, Associate Justice