State v. Rivers

State v. Rivers (2004-076); 178 Vt. 180; 878 A.2d 1070

2005 VT 65

[Filed 10-Jun-2005]


       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.


                                 2005 VT 65

                                No. 2004-076


  State of Vermont	                         Supreme Court

                                                 On Appeal from
       v.	                                 District Court of Vermont,
                                                 Unit No. 3, Franklin Circuit

                                                 December Term, 2004
  Pete John Rivers


  Michael S. Kupersmith, J.

  Diane C. Wheeler and Edward J. O'Shaughnessy , Franklin County Deputy
  State's Attorneys,   St. Albans, for Plaintiff-Appellee. 

  Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General
  and Vince Pearson, Law Clerk, Montpelier, for Defendant-Appellant.


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

        
       ¶  1.  JOHNSON, J.   Defendant, Pete Rivers, appeals the Franklin
  District Court's order imposing his underlying prison sentence after
  concluding that he violated a probation condition that prohibited defendant
  from having "contact" with children under the age of sixteen without prior
  written approval from his probation officer.  In reliance on State v.
  Danaher, 174 Vt. 591, 819 A.2d 691 (2002) (mem.), and State v. Leggett, 167
  Vt. 438, 709 A.2d 491 (1997), the court held that "proximity is contained
  within the meaning of 'contact,' "and thus, defendant violated his
  probation by placing himself "in close physical proximity to minors under
  16 years of age" while standing near them in the lines for rides at the
  Champlain Valley Fair.  Aside from mere proximity in this public space, the
  evidence did not indicate that defendant physically touched, initiated or
  sought conversation with, or otherwise stalked any particular children. 
  The court also found that defendant's probation officer had warned
  defendant not to attend the fair without an approved supervisor lest she
  file a contact violation against him.  Other than the general no-contact
  condition, defendant's probation conditions do not contain a specific
  prohibition on going to public places like the fairgrounds.  On appeal,
  defendant argues that the proximity-equals-contact rule cannot be fairly
  and practically extended to a case that neither involves contact with a
  specified individual as in Danaher, nor contact in a private location like
  the residence involved in Leggett.  Defendant claims that an expansion of
  this rule beyond those contexts would unduly restrict his liberty, leaving
  him guessing as to what public places he could go to without being arrested
  for violating the no-contact condition.  Defendant also concedes that the
  court could have modified his probation conditions to prohibit him from
  frequenting specific public places where children will be present in large
  numbers, but argues that his probation officer lacked the power to impose
  such a condition without approval from the court.  We agree with defendant
  on both points, and therefore, reverse.

                                     I.


       ¶  2.  Because the facts of this case, as summarized above, are
  relatively straightforward, we begin by examining the scope of the
  proximity-contact rule as we have applied it in the past.  We examine
  Danaher first because, as the following discussion will demonstrate, the
  reach of the proximity-contact rule was not a point of contention on appeal
  in Leggett.
   
       ¶  3.   In Danaher, the court found probationer Martin Danaher in
  violation of a probation condition that required him to have "no contact
  with [his victim] . . . or her family without their prior consent and prior
  approval of the Probation Officer."  174 Vt. at 591, 819 A.2d  at 692.  The
  evidence against Danaher included testimony about a series of "contacts"
  Danaher had with his victim, some that resulted in the charged violation,
  and others that the trial court considered as circumstantial evidence in
  determining whether the charged contacts were intentional.  Id. at 594, 819 A.2d  at 695-96.
         
       ¶  4.  One of the contacts that led to the violation occurred at a
  property that Danaher knew his victim frequented because her close friend
  resided there.  Danaher, who kept his horse at the friend's property, his
  victim, and the friend were all by the horse pasture when the friend's
  horse broke free.  Danaher remained in close proximity to the girls as they
  tried to corral the horse.  Danaher offered to help the girls, but they
  declined.  The friend specifically asked Danaher to leave, but he refused
  to do so, and remained within ten to fifteen feet of the girls, following
  his victim with "his eyes and body posture."  Id. at 592, 819 A.2d  at 693.  

       ¶  5.  The second incident occurred the following day when Danaher
  drove to a bus stop used by his victim and also by his own daughters.  The
  victim testified that Danaher saw her as he drove up, but stopped anyway. 
  From his car, he called to his daughters who came over to see him.  While
  lingering by the stop, Danaher stared at his victim for approximately four
  minutes.  The court also considered other incidents where Danaher stared at
  his victim as he passed her in his car, or on one occasion for over an hour
  while she rode her horse.     
   
       ¶  6.  On appeal, Danaher argued that including proximity within the
  definition of contact rendered the term ambiguous and vague.  Id. at 593,
  819 A.2d  at 694.  We rejected that argument, reasoning that proximity is
  within the ordinary meaning of contact as this Court and at least one other
  had previously held.  Id. at 594, 819 A.2d  at 695.  We also cited a
  dictionary definition of contact that encompassed both "immediate
  proximity" and "visual observation."  Id. at 593 n.2, 819 A.2d  at 695 n.2. 
  In adopting this broad definition, we concluded that it best effectuated
  the purpose of a "no contact" order, which we identified as "protecting the
  victim from future occurrences of the behavior which initially resulted in
  the order."  Id. at 594, 819 A.2d 695.  The dissent recognized that the
  enforcement of the no-contact condition in the manner affirmed by the
  majority also served to prevent defendant from engaging in conduct that was
  undesirable and upsetting to the victim of the crime.  Id. at 594, 819 A.2d 
  at 696 (Dooley, J., dissenting); cf. Stanton v. Iowa Dist. Ct. for Polk
  Cty.,  2001 WL 98951, at *2 (Iowa Ct. App. 2001) ("The obvious purpose of a
  no contact order is to protect the victim of domestic abuse from harm or
  harassment.") (unpublished disposition).  While agreeing that probation
  conditions could and should have been drafted to serve this purpose, the
  dissent rejected the idea that a condition that prohibited only "contact"
  with the victim gave notice that other harassing behavior such as staring
  or close physical presence was prohibited.  Danaher, 174 Vt. at 594, 819 A.2d  at 696 (Dooley, J., dissenting).  Finally, the majority opinion
  concluded that, based on the evidence and inferences drawn therefrom, these
  incidents were not inadvertent, but instead resulted from Danaher's
  intentional conduct.  Id.
   
       ¶  7.  Danaher also relied upon State v. Leggett.  In that case,
  Leggett was charged with violating a probation condition that, like the
  condition at issue here, prohibited unapproved contact with children under
  the age of sixteen.  We found support for a no-contact violation even
  though the evidence in Leggett did not reveal any communication or physical
  touching between Leggett and two underage girls who were present with him
  in a private residence on multiple occasions.  Id.  The question presented
  by Leggett's appeal was not, however, whether proximity satisfied the
  definition of contact, but instead whether the trial court erred in
  allowing hearsay testimony about Leggett's actions without first finding
  good cause to admit the hearsay testimony.  Leggett, 167 Vt. at 439, 709 A.2d  at 491.  We concluded that there was sufficient direct evidence to
  find a contact violation even if the hearsay evidence had not been
  admitted, and went on to recount that evidence.  Id. at 440, 709 A.2d  at
  492-93.

       ¶  8.  The evidence we considered as supporting the violation included
  testimony from an underage girl who had been in a private residence with
  another underage girl on two occasions  when Leggett was also present.  Id.
  at 441, 709 A.2d  at 493.  The testimony indicated that the second girl, who
  resided in the house, regularly referred to Leggett as her uncle.  On
  another occasion, Leggett attended a Super Bowl party where the second girl
  was present, and remained there in spite of the fact that the underage girl
  was one of the guests.  The evidence also showed that Leggett and the
  girl's mother maintained a close relationship, seeing each other four or
  five times a week.  On some of those occasions, Leggett would spend the
  evening at the girl's house.  As the Danaher dissent observed, we did not
  consider the exact definition of "contact" in Leggett because that issue
  was not raised on appeal.  Danaher, 174 Vt. at 595 n.3, 819 A.2d  at 697 n.3
  (Dooley, J. dissenting).  The Danaher dissent speculated that Leggett chose
  not to raise the issue because he "would find it hard to argue that he was
  frequently present in the house with the child, acting as a relative, but
  made no contact with the child, whatever the definition of the term."  Id.
   
       ¶  9.  We have repeatedly recognized that probation conditions
  should not be " 'unduly restrictive of the probationer's liberty or
  autonomy.' "  State v. Moses, 159 Vt. 294, 297, 618 A.2d 478, __ (1992)
  (quoting State v. Whitchurch, 155 Vt. 134, 137, 577 A.2d 690, 692 (1990)). 
  Moreover, a probation restriction must be reasonably related to protecting
  the public from a recurrence of the crime that resulted in the imposition
  of probation, and must serve the statutory purpose of assisting the
  probationer to lead a law-abiding life.  Id. at 297-98, 618 A.2d  at 480. 
  In State v. Moses, we acknowledged that a condition is reasonable if "it is
  not unnecessarily harsh or excessive in achieving these goals . . .
  conditions that restrict a probationer's freedom must be especially
  fine-tuned."  Id. at 298, 618 A.2d  at 481 (quotation omitted).  As applied,
  the no-contact condition here is overbroad and unduly restrictive of
  probationer's freedom and autonomy.  

       ¶  10.  No-contact conditions involving a probationer's victim are
  substantially less restrictive than general no-contact conditions involving
  a large class like children under the age of sixteen.  With victim-related
  contact conditions, a probationer need usually avoid specifically named
  persons who are known to the probationer.  As in Danaher, a probationer
  will likely be aware of places that the victim frequents, and can plan to
  avoid those places.  In the event that a probationer happens upon the
  victim in an unexpected place, probationer may prevent a proximity-contact
  violation by timely departing from the scene without interacting with the
  victim.  Cf. State v. Coyle, 2005 VT 58, ¶ 12 (concluding that coincidental
  proximity-contact in a public place became intentional when probationer
  failed to leave the scene after recognizing that his victim was present). 
  By contrast, a probationer required to avoid proximity-contact with all
  children under the age of sixteen would have to refrain from going to
  numerous public places where essential daily business is transacted.   
   
       ¶  11.  Moreover, the justifications for the proximity-contact rule
  in cases involving victim-specific conditions do not apply with the same
  force in cases involving blanket no-contact conditions.  In both Danaher
  and State v. Coyle, another recent case that also involved
  proximity-contact with a probationer's victim, the victims came forward to
  complain about the contacts.  This fact demonstrates how traumatic and
  distressing such contact can be for a victim.  Proximity contacts can also
  cause problems for probationers by reawakening the mental processes that
  led to past abuse.  Cf. Coyle, 2005 VT 58, ¶ 6 (noting that probationer's
  sex offender treatment counselor expressed special concern over
  probationer's proximity-contact with probationer's victim of record).  This
  reawakening can greatly undermine the rehabilitative process that probation
  is intended to foster.  Here, defendant's incidental contact with children
  at the fair, many of whom were accompanied by parents or other adults,
  caused no harm to those children.  The children were oblivious to
  defendant's past as a sex-offender, and nothing that defendant did would
  have alerted them to this fact so as to cause alarm or fear. 

       ¶  12.  Unlike the public incidental contact at issue here, unapproved 
  proximity-contact with minors in the context of a private residence
  presents greater dangers to the protected class and to a probationer's
  rehabilitation.  In the public setting, a probationer is several steps
  removed from the opportunity to commit abuse.  The opportunity to re-offend
  is substantially greater when a potential victim is isolated in a physical
  environment, like a residence, where a probationer could easily initiate
  abuse without having to overcome the logistical obstacles presented in a
  crowded public place.
   
       ¶  13.  As the foregoing discussion illustrates, our previous
  cases have not required consideration of the proximity-contact rule's full
  scope.  Specifically, we have not confronted the problem presented in this
  case where the evidence shows nothing more than incidental
  proximity-contact in a public place with numerous, unspecified individuals
  who are members of an ubiquitous class-children under the age of sixteen. 
  Thus, this case demonstrates that, as enforced here, this common probation
  condition could extend to any number of other public places where children
  are regularly present such as grocery stores, movie theaters, libraries,
  fast-food restaurants, parks, or even downtown streets all across Vermont
  where children often congregate in large numbers after school  and during
  the summer months.  When removed from the context of victim-contact or
  private locations where different considerations apply, such a broad rule
  severely restricts a probationer's liberty while doing little to
  rehabilitate the offender or prevent the behavior that led to the
  no-contact condition in the first place.  Accordingly, we decline to extend
  the proximity-contact rule beyond situations like those presented in
  Danaher and Leggett.

                                     II.

       ¶  14.  The State attempts to support this violation by relying on the
  fact that the no-contact condition has not actually been applied to cover
  proximity-contact in all public places, but instead was expressly limited
  by defendant's probation officer.  The State points to the trial court's
  finding and conclusion that defendant "was given explicit and specific
  warning by the Probation Officer that attendance at the fair would place
  him in contact with children, and that he could not have that contact
  unless he was supervised by an approved adult."  Although the State's
  rationale might allay potential notice problems, its construction of the
  condition gives the probation officer authority to determine which public
  places defendant may frequent without any judicially-imposed standards to
  restrain her authority.  In the nebulous context of proximity-contact
  involving unspecified individuals who are members of a broad class, this
  results in an improper delegation of the court's power to impose probation
  conditions.  See Moses, 159 Vt. at 300, 618 A.2d  at 481-82 (recognizing
  that court cannot delegate its statutory authority to impose probation
  conditions).
   
       ¶  15.  In Moses, we observed that the Legislature "placed the power
  to impose probation conditions on the court, and not on the corrections
  department and its employees."  Id. at  301, 618 A.2d  at 482; 28 V.S.A. §
  252(a).  Similarly, the power to modify probation conditions also rests
  exclusively with the courts.  28 V.S.A. § 253(a).  Furthermore, the statute
  requires that petitioner be given a "reasonable opportunity" to contest any
  modifications before they are imposed.  Id. § 253(b).  Probation conditions
  must retain some degree of flexibility, and probation officers may be
  granted a limited amount of discretion in implementing
  conditions-especially conditions designed to address situations that the
  court cannot anticipate.  Moses, 159 Vt. at 300-01, 618 A.2d  at 482.  As
  stated in the American Bar Association's, Standards for Criminal Justice 2d
  § 18-2.3(c) (ii), "[p]robation officers should have authority to implement
  judicially prescribed conditions, but the conditions must be sufficiently
  precise so that probation officers do not in fact establish them."  See
  also Moses, 159 Vt. at 300, 618 A.2d  at 482 (citing approvingly to ABA
  Standard).

       ¶  16.  The condition in this case lacks sufficient precision.  In its
  entirety, the condition states "[t]he defendant is to have no contact with
  children under the age of sixteen without prior approval of the probation
  officer."  As applied by the probation officer, this condition prohibits
  more than touching or verbal, written, and electronic communication with
  members of the protected class; it prohibits going to certain places where
  children can be expected to congregate.  This interpretation is not,
  however, evident from its plain language.

       ¶  17.  The district court's own comments and conduct in this case
  belie the State's claim that defendant's general no-contact condition was,
  without the need for excessive and improper interpretation by the probation
  officer, sufficiently precise to accomplish the purpose of keeping him away
  from areas children frequent.  At its August 28, 2003 hearing, before
  taking evidence, the court commented on the no-contact condition in
  response to the State's assertion that defendant was placing the community
  at risk by going to places like the fair.  The court stated: 

    "[I]f this is as specific a condition as Mr. Rivers has, there's
    some real question in my mind about whether this constitutes a
    violation. . . . But typically I might say in a probation case the
    Defendant's not to have contact with children under the age of
    sixteen except for contact in public places provided that
    Defendant is not to go to public places frequented by children
    such as playgrounds, arcades and the like. I might add the fair. 

  (Emphasis added).  

       ¶  18.  Later in the hearing, the court fashioned conditions of
  release for defendant that specifically addressed the issues in this case. 
  The court's order required defendant to comply with all existing conditions
  of probation, which included the blanket no-contact condition.  Then, in
  specific reference to the contact issues, the court stated that it
  "need[ed] to try and tighten this up a bit."  The "tightening" process
  resulted in the following condition of release:

    "Defendant shall not initiate or maintain contact with any
    children under the age of 16 yrs. (FN!)  Def. shall not frequent
    places primarily used by children to include but not limited to
    playgrounds, arcades, school grounds, fair grounds & stores or
    areas of malls where children under the age of 16 are to be found
    including stores that cater to clothing stores [sic] that cater to
    young children such as Old Navy, GAP, Abecrombie and Fitch for
    kids." 

  At the subsequent merits hearing, the court concluded that defendant had
  violated the blanket no-contact condition of his probation by attending the
  fair unsupervised, even though, unlike the court's more specific condition
  of release, the probation condition makes no reference to the fair.  The
  question arises then why the court felt the need to add this more specific
  condition of release when it also required defendant to abide by all of his
  probation conditions, including the no-contact condition that, in the
  court's view, already prohibited defendant from going to the fair. 
   
       ¶  19.  In spite of its own conclusion to the contrary, the district
  court's treatment of this issue in setting conditions of release
  demonstrates that: (1) defendant's no-contact probation condition cannot
  reasonably be read as a prohibition on attending the fair; and (2) if the
  circumstances of this case demonstrated the need for such a condition, it
  was well within the court's ability to fashion it in a precise manner that
  would have avoided an impermissibly overbroad delegation of authority to
  defendant's probation officer.  See Moses, 159 Vt. at 301, 618 A.2d  at 482
  (stating that the discretion vested in a probation officer must be limited
  in relation to the court's ability to "anticipate the relevant issues and
  construct a proper condition").  The probation condition at issue
  proscribes defendant's interaction with all children under the age of
  sixteen, but makes no mention of specific public locations or events where
  children are often present.  By prohibiting defendant from attending the
  fair, defendant's probation officer converted the probation condition from
  a contact-based condition to a location-based condition.  In so doing, the
  probation officer crossed the line between condition interpretation and
  modification.  As the dissent in Danaher correctly noted, "a probation
  officer can give direction within the contours of the court's probation
  condition but cannot create a condition different from that imposed by the
  court."  174 Vt. at 596, 819 A.2d  at 698 (Dooley, J., dissenting).  The
  State's attempt to support this violation determination by asserting that
  defendant's probation officer properly limited the application of the
  blanket no-contact condition causes more problems than it solves. 
  Accordingly, we reject its argument.    


       Reversed.


                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  At the hearing, the district court stated that defendant was "not to
  initiate or maintain contact with children under the age of sixteen, except
  (unclear) in public places."  The condition, as reprinted in the docketing
  statement does not include the public-places exception.  For some
  unexplained reason, the order setting out the conditions of release is not
  included in the trial court's file.  As a result, the excerpt in the text
  above is taken from the docketing statement.