State v. Oren

STATE_V_OREN.93-337; 162 Vt. 331; 647 A.2d 1009

[Opinion Filed July 1, 1994]


 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. 93-337


 State of Vermont                             Supreme Court

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

 Wanita L. Oren                               May Term, 1994




 Linda Levitt, J.

 Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant Attorney
   General, Montpelier, for plaintiff-appellee

 Charles S. Martin of Martin & Paolini, P.C., Barre, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      ALLEN, C.J.  Defendant Wanita Oren appeals her conviction following a
 jury trial for hindering a law-enforcement officer, 13 V.S.A. { 3001.  We
 affirm.
      Around 6:00 in the evening of February 8, 1989, a Washington County
 deputy sheriff went to the Northfield home of defendant and her husband to
 serve civil process.  The deputy was not wearing a uniform and drove an
 unmarked Sheriff's Department cruiser.  She was accompanied by her fourteen-
 year-old son.  The deputy proceeded past the gate at the entrance to
 defendant's farm and down the access road to the dooryard just outside the
 house.  Defendant drove up in a pickup truck and parked so to block the

 

 deputy's exit, and then ran toward the deputy's car.  Screaming obscenities,
 defendant accused the deputy of trespassing and demanded identification.
 The deputy explained that she was there to serve process on defendant and
 her husband, and produced her badge and identification.  Defendant tried to
 grab the badge, and told her husband to call the Northfield police.
 Defendant then went into the house.  The deputy became fearful and tried to
 maneuver around defendant's truck, but succeeded only in getting her car
 stuck in a snowbank.  Defendant then reappeared, screamed accusations that
 the deputy had hit her truck, and pounded on the hood and windshield of the
 cruiser.
      The police arrived one-half hour later and helped the deputy extricate
 the cruiser.  The deputy followed the police out the driveway, stopping
 before she reached the road.  She placed the papers on the ground and
 announced that the Orens had been served.  Defendant drove up from behind,
 ran to the cruiser, and as the deputy was driving through the gate,
 defendant pushed the gate, hitting the side of the cruiser.  Defendant then
 jumped on the hood of the cruiser and refused to get down.  The deputy
 slowly drove through the gate, and defendant slid off the hood.
      Defendant originally was charged with two counts of impeding a public
 officer, 13 V.S.A. { 3001, and one count of simple assault on a police
 officer, 13 V.S.A. {{ 1023, 1028.  All three counts were dismissed for lack
 of probable cause.  The State appealed, and this Court reinstated the two
 counts of impeding a public officer.  See State v. Oren, No. 90-213 (Vt.
 Nov. 9, 1990).  The count alleging that defendant had impeded one of the
 Northfield police officers was dismissed before trial, and defendant
 subsequently was convicted of hindering the deputy in serving process.

 

      Defendant then moved for and was granted a new trial, based on newly
 discovered evidence that the deputy's commission as deputy sheriff had
 expired at the time of the incident, which meant that she was not a public
 officer for purposes of 13 V.S.A. { 3001.  Based on this evidence,
 defendant moved to dismiss, alleging that the State could not prove a prima
 facie case.  The motion was denied, defendant appealed, and this Court
 affirmed, ruling that despite the lapsed commission the State could make its
 case based on the de facto public officer doctrine.  See State v. Oren, ___
 Vt. ___, ___, 627 A.2d 337, 339 (1993).  In light of this ruling, the trial
 court reconsidered its order granting a new trial and rescinded the order,
 thereby reinstating defendant's conviction on one count of impeding the
 deputy.
      On appeal, defendant alleges five errors:  (1) the information and
 affidavit do not state an offense for which she could be convicted; (2) she
 committed no acts, illegal or otherwise, that hindered the deputy in serving
 the civil process, and that the deputy was not performing a law-enforcement
 function; (3) application of 13 V.S.A. { 3001 under the facts of this case
 renders the statute unconstitutionally vague and unenforceable; (4) the
 trial court erred by admitting evidence of defendant's conduct after
 process had been served; and (5) the trial court erroneously prohibited
 defendant from demonstrating that the deputy was not authorized to serve
 process.
                                     I.
      Defendant's first claim of error rests on an alleged absence of an
 illegal act for a violation of 13 V.S.A. { 3001.  Section 3001 provides
 that "[a] person who hinders an executive, judicial, law enforcement, civil

 

 or military officer acting under the authority of this state or any
 subdivision thereof shall be imprisoned not more than three years or fined
 not more than $500.00, or both."  "Hinder" means "'to slow down or to make
 more difficult someone's progress towards accomplishing an objective; to
 delay, or impede or interfere with that person's progress.'"  State v. Oren,
 slip op. at 1 (quoting State v. Dion, 154 Vt. 420, 423, 578 A.2d 101, 103
 (1990)).  Such interference must be action that a defendant does not have
 the legal right to take.  Dion, 154 Vt. at 424, 578 A.2d  at 103.
      Factually, this case resembles State v. Dion, in which the defendant
 had been charged with hindering a State game warden from citing a boy for a
 fish and game violation.  Id. at 421-22, 578 A.2d  at 102.  In threatening
 language, Dion and another individual had told the warden to leave the boy
 alone.  Dion warned the warden that he was on his territory and that he
 would "get [the warden's] ass good."  There was no physical contact between
 the defendant and the warden, but the defendant tried to pull the boy from
 the warden's grasp.  Moreover, the warden felt threatened enough to call for
 assistance in bringing the situation under control.  On appeal, Dion
 complained that the State did not provide sufficient evidence that he had no
 legal right to act as he did.  We disagreed, and held that testimony that
 the defendant had physically interfered with the warden's actions and had
 used "'fighting words'" sufficed to prove the charge.  Id. at 425-26, 578 A.2d  at 104.
      As in Dion, the evidence in this case demonstrates that defendant
 verbally menaced the deputy and made threatening gestures from the moment
 she arrived to serve process.  If anything, defendant became more
 belligerent after the deputy identified herself, her son, and her reason for

 

 being on defendant's property.  The evidence shows that the deputy
 reasonably believed she could not carry out her duty without risk of harm to
 herself.  In our earlier ruling reversing the trial court's dismissal of the
 hindering charge, this Court held that "[t]he record in the present case
 amply supports a finding of probable cause that defendant hindered a law
 enforcement officer in violation of 13 V.S.A. { 3001."  State v. Oren, slip
 op. at 1.  The more complete trial record reinforces the conclusion that
 defendant acted without legal right to impede the deputy in the performance
 of her duty.
                                     II.
      Defendant next argues that nothing she did actually hindered the deputy
 from serving process.  She argues that banging on the car did not prevent
 the deputy from discharging her duty, and that her refusal to move the truck
 after she had blocked the deputy's car amounted to a refusal or
 unwillingness to act, not an affirmative act.  The evidence shows, however,
 that the deputy intended to serve the Orens without delay and then leave the
 premises, but that defendant and her husband put her in fear for her own
 safety and the safety of her son, and prevented her from leaving or acting
 until help arrived from the Northfield police.  As the above cited
 definition of hindering illustrates, { 3001 does not require that a
 defendant make the officer's performance of duty impossible; it is enough
 that defendant intentionally impeded the deputy's accomplishment of her
 task.
      We also find no merit to defendant's claims that the conviction cannot
 stand because the deputy was not performing a law-enforcement function in
 serving civil process.  It is undisputed that the deputy was a certified law

 

 enforcement officer at the time of the incident.  Under 24 V.S.A. { 309,
 "deputies may, and when required, shall perform any official duty which may
 be required of the sheriff."  By statute, a county sheriff has the duty to
 "serve and execute lawful writs, warrants and processes directed to him . .
 . and [to] do all other things pertaining to the office of sheriff."  Id. {
 293.  The hindering statute requires only that an individual be hindering a
 law enforcement officer "acting under the authority of this state."  13
 V.S.A. { 3001.  Thus, liability is not based on whether that officer was
 performing a "law-enforcement function," but only, as was the case here,
 that a law enforcement officer be acting under state authority.
                                    III.
      Defendant also argues that application of 13 V.S.A. { 3001 under the
 facts of this case renders the statute unconstitutionally vague.  She
 relies on the trial court's dismissal of the simple assault count for lack
 of probable cause, and contends that a reasonable person could not determine
 what would constitute a violation of { 3001 if a violation can be founded
 on something less than simple assault.  To survive a void-for-vagueness
 challenge, a statute need not "detail each and every act or conduct that is
 prohibited."  Brody v. Barasch, 155 Vt. 103, 111, 582 A.2d 132, 137 (1990).
 The statute need only "be sufficiently clear to give a person of ordinary
 intelligence a reasonable opportunity to know what is proscribed."  Id. at
 110, 582 A.2d  at 137.  The facts of this case incontrovertibly demonstrate
 that defendant continued to threaten the deputy even after discovering that
 she had come onto defendant's property as a deputy sheriff in order to serve
 legal process.  Defendant's actions far exceeded a reasonable response to
 the circumstances, even had she reasonably perceived a threat to herself or

 

 her property when the deputy first arrived.  As applied to the facts in this
 case, a person of ordinary intelligence should have understood that such
 behavior interfered with the officer's discharge of her duty.  Therefore,
 defendant cannot complain that { 3001 is unconstitutionally vague as
 applied.
                                     IV.
      Defendant next contends that the trial court erroneously admitted
 evidence of her conduct after service had been effected, and that this
 conduct could not be presented to establish the illegal conduct element of
 { 3001.  At trial, defendant claimed she acted in self-defense in response
 to an apparent threat from two individuals in an unmarked vehicle who had
 come onto her property after dark.  The State introduced evidence of post-
 service conduct to establish that defendant did not act reasonably even if
 she acted in self-defense, especially after the deputy had identified
 herself as a deputy sheriff and the Northfield police officers had
 corroborated the identification.  The trial court specifically instructed
 the jury that evidence of post-service conduct could not be factored into a
 determination of whether the deputy had been hindered, but only to resolve
 the issue of defendant's state of mind.  The evidence was relevant and the
 court acted to ensure that it would not be used improperly.  The trial court
 did not abuse its discretion in admitting it.  See V.R.E. 104(a) (trial
 court determines admissibility); State v. Searles, ___ Vt. ___, ___, 621 A.2d 1281, 1284 (1993) (circumstances surrounding an alleged offense
 admissible to promote jury understanding of events).


 

                                     V.
      Finally, defendant alleges that the trial court improperly curtailed
 cross-examination of the deputy on the issue of whether she was authorized
 to serve process.  At trial, defendant sought to establish that the deputy
 acted beyond the scope of her duties as a part-time deputy sheriff, and
 that, acting without authorization in serving process, she was not
 discharging a law-enforcement duty within the meaning of 13 V.S.A. { 3001.
 Regarding the first part of this claim, in an interlocutory appeal in this
 same case this Court held that the deputy, as a de facto officer, had the
 authority to act as a deputy sheriff and serve process on the Orens.  Oren,
 ___ Vt. at ___, 627 A.2d  at 339.  As to the second part of this claim, we
 have determined that it is enough that the deputy was acting under state
 authority.  Since both of defendant's arguments on this point turn on
 questions of law, the trial court did not err in limiting defense counsel's
 inquiry into factual matters on cross-examination.
      Affirmed.

                                         FOR THE COURT:



                                         ______________________________
                                         Chief Justice