State v. Stone

Annotate this Case

State v. Stone (98-075); 170 Vt. 496; 756 A.2d 785

[Filed 12-May-2000]

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. 98-075

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 3, Caledonia Circuit
Pamela Stone
March Term, 1999

Mary Miles Teachout, J.

Robert M. Butterfield, Caledonia County Deputy State's Attorney, St. Johnsbury,
for Plaintiff-Appellee.

Robert Appel, Defender General, and Henry Hinton, Appellate Attorney,
Montpelier, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

DOOLEY, J. Defendant Pamela Stone was convicted by a Caledonia
District court jury of hindering a police officer, in violation of 13
V.S.A. § 3001. Defendant appeals on the grounds that the evidence
presented at trial was insufficient to support her conviction. We agree
and reverse.

On September 19, 1998, a Vermont State Police officer received
information that John Stone had failed to return from furlough and had
been placed on escape status by the Vermont

Department of Corrections. The officer had dealt with Mr. Stone before,
knew where Stone lived, and drove his marked cruiser to Stone's home in
St. Johnsbury. Finding no one at home, the officer left around 8:00 p.m.
While on the road only minutes later, the officer came up behind a car he
recognized as that of defendant Pamela Stone, Mr. Stone's wife. He
followed the car as it pulled into the parking lot of a gas station in
Lyndonville and proceeded into a dimly-lit section of the parking lot
behind the station. The officer stopped and approached the car,
determining with his flashlight that the car was occupied by defendant in
the driver's seat, John Stone in the front passenger's seat and an unknown
male in the back seat. He also saw alcohol containers on the rear floor.

As the officer neared the driver's window, defendant asked if there
was a problem. The officer replied that Mr. Stone was on escape status
and directed the occupants of the vehicle to remain in it and to place
their hands where they could be seen. Defendant complied with this order
by putting her hands on the steering wheel and remaining in her seat.

Mr. Stone, however, did not comply. Instead, he began to yell and
swear, generally acting out of control. The officer moved to the
passenger side of the vehicle, repeatedly telling Mr. Stone that he was
under arrest and to exit the car. Mr. Stone refused to comply, continuing
his verbal torrent and locking his door. When the officer determined he
could not enter, and after warning Mr. Stone of the consequences of
noncompliance, he smashed the passenger window with his flashlight to gain
access to the door lock.

When the officer shattered the window, defendant immediately got out
of the car and walked towards the rear of the vehicle in a quick and
determined manner. She was carrying an object that turned out to be her
purse. The officer ordered her to return to the driver's seat, but

she did not comply and continued walking. The officer then left the
passenger side of the car and confronted defendant along the driver's
side. He repeatedly ordered defendant to get back in the car until he had
apprehended Mr. Stone, but she refused to comply and attempted to go either
around or through the officer. After warning her, the officer then told
defendant that she was under arrest, and he reached down to grab her wrist
to handcuff her. That caused an altercation between the officer and Mr.
Stone, who left the vehicle to come to the aid of his wife. A back-up
officer arrived and took custody of defendant while the original officer
arrested Mr. Stone.

Defendant was charged with and convicted by a jury of hindering the
officer's arrest of Mr. Stone in violation of 13 V.S.A. § 3001. That
statute 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." (FN1)

Defendant moved for a judgment of acquittal pursuant to V.R.Cr.P.
29(a), both at the close of the State's case and at the close of the
evidence, arguing that the evidence was insufficient to sustain a
conviction for hindering the officer's arrest of her husband. The trial
court applied the standard for considering such a motion: whether the
evidence viewed in a light most favorable to the State and excluding any
modifying evidence, is sufficient to fairly and reasonably support a
finding of guilt beyond a reasonable doubt. See State v. Couture, ___Vt.
___, ___, 734 A.2d 524, 527 (1999). The court denied the motion,
concluding:

The state has shown evidence showing that she refused to stay
behind the wheel as she had been ordered to do inside the car, that
she exited the car when told not to, that she was told to reenter the
car, and she persisted in refusing to reenter the car and in walking
back, toward the back of the car, and confronting the officer, that
she did physically interfere with his ability to attend to a very
difficult, agitated and unruly person that the officer was taking into
custody, so the motion is denied.

The court also noted that defendant "walked beside the car, not walking
away from the car." Defendant argues anew in this Court that the evidence
was insufficient to support her conviction.

Before we address the applicable law, we think it important to address
the State's theory of hindering that is supported by the evidence. The
evidence of defendant's conduct before her arrest came exclusively from
the testimony of the officer. (FN2) The officer's testimony was that he
confronted defendant when she was walking along the driver's side of the
vehicle in the direction of the rear of the car. There was no indication
that she intended to go around the rear of the car and physically
interfere with the officer's arrest of John Stone. Indeed, the officer
admitted her actions were equally consistent with an intent to leave the
area of the car and go to the gasoline station.

Consistent with these facts, the officer stated why he believed
defendant had hindered his arrest of Mr. Stone:

Ms. Stone, by getting out of her vehicle after I had essentially told
her to stay in the vehicle, directly affected my ability to deal directly
with John Stone in a safe and efficient manner, depending upon how
he reacted. It affected my ability to be able to place him into
custody without any other people getting involved, and by her
getting out of the vehicle, she caused me fear for my safety.

He testified that his fear was caused:

Because I hadn't searched her. I didn't know what her intentions
were. She had something in her hands, later turned out that it was
her purse and I hadn't gone through her purse, I had no idea what
she was going to do.

Although all cases must be decided on their unique facts, we emphasize
the limit of what those facts show. As the trial court found, if
defendant hindered the arrest, it is because she left the car in
contradiction of the officer's orders, and did not immediately proceed away
from the car so it was clear she would not physically interfere with the
arrest. (FN3)

We have defined "hinder" as "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, 162 Vt. 331,
334, 647 A.2d 1009, 1011 (1994). In interpreting the statute, we have
consistently added that the interference "must be action that a defendant
does not have the legal right to take." Id. This requirement was first
explained in State v. Buck, 139 Vt. 310, 313,

428 A.2d 1090, 1093 (1981), where the owner of a business was charged with
hindering the actions of tax inspectors, who were examining records of
defendant's business in a room where they were kept. After a dispute
arose over the inspectors' action, defendant entered the room, removed the
light bulb and placed seat pads against the door after he left. In
rejecting the State's claim that these actions hindered the activities of
the inspectors, this Court held:

We regard the test as being one of whether or not the respondent
has a legal right to take the action which results in impeding the
officer. If he does have that right, its exercise is not prohibited by
the statute. Only when he has no such right can his actions be an
unlawful hindrance.

Id. We held that defendant had a right to remove his own property - that
is, the light bulbs; and that the seat pads were a minor hindrance to
leaving the room, but not to the tax inspection. Id. at 314, 428 A.2d at
1093.

We have explored the absence of legal right element of the offense in
some later cases. In Oren, 162 Vt. at 335, 647 A.2d at 1012, and State v.
Dion, 154 Vt. 420, 424, 578 A.2d 101, __ (1990), we found absence of a
legal right because defendant was charged with threatening a law
enforcement officer to prevent the officer from discharging a duty. For
example, in Oren, defendant threatened a deputy sheriff to prevent the
deputy from serving civil process on her. See Oren, 162 Vt. at 335, 647 A.2d at 1012. By comparison, in a case where defendant was charged with
hindering the police by flushing cocaine in his possession down the toilet,
we held that defendant had a legal right to do so, noting that although
cocaine possession was a crime, dispossession was not unless the defendant
sold or dispensed it. State v. Harris, 152 Vt. 507, 509, 568 A.2d 360,
361 (1989).

Here, defendant claims the State presented insufficient evidence that
her actions were

unlawful, because she had a legal right to exit the car and walk away. The
State responds that her action were unlawful because defendant did not
have a legal right to ignore the officer's order to return to her seat in
the car.

Whether defendant's conduct here is more like threatening an officer,
or more like turning off the lights and shutting the door on tax
inspectors, we cannot conclude that her failure to obey an officer's
command automatically makes her guilty of hindering the officer. Although
we have never addressed this question, we find decisions from other
jurisdictions persuasive. (FN4) See e.g., District of Columbia v. Little,
339 U.S. 1, 5-6 (1950) (defendant's refusal to unlock door of home for
health inspector did not constitute inference with officer); Coley v.
State, 344 S.E.2d 490, 491 (Ga. Ct. App. 1986) (failure to respond to
officer's orders to move away from truck, and then to stop walking, did
not support conviction for obstructing officer); City of Warren v.
Stringer, 1983 WL 6090, at *1 (Ohio Ct. App. 1983) (failure of automobile
passenger to remove his hands from under seat when ordered to do so by
police officer, during arrest of driver, is not obstructing action of
officer); City of Columbus v. Waterman, 322 N.E.2d 291, 294-95 (Ohio Ct.
App. 1974) (failure of defendant to leave area where police were conducting
an arrest, when directed by

police, insufficient to support crime of hindering the officer); State v.
Mendez, 970 P.2d 722, 730 (Wash. 1999) (failure to heed order to return to
car during traffic stop did not support conviction for obstructing
officer). If disobeying an officer were, in and of itself, sufficient to
make out the crime of hindering, a police officer could transform
inoffensive conduct into an act of hindering merely by giving an order,
"convert[ing] the character of an event from nonpunishable to punishable
by proclamation alone." New Jersey v. Manning, 370 A.2d 499, 504 (N.J.
Super. Ct. App. Div. 1977) (Antell, J., dissenting). Under this theory,
the tax inspectors in Buck could have criminalized defendant's conduct by
ordering him not to remove the light bulb.

We acknowledge that disobeying an officer's command is often part of
the conduct that courts have held to constitute hindering, but find it
significant that in many of those cases the defendant has engaged in other
acts which would independently constitute hindering or some other crime.
For example, in Wilkerson v. Florida, 556 So. 2d 453 (Fla. Dist. Ct. App.
1990), defendant was interfering with the arrest of a group of drug
dealers by yelling and cursing at the officers and telling them they had
no business there. Her actions attracted a crowd, and the officers
directed her to leave, but she remained. The court upheld a conviction for
obstruction of a law enforcement officer, concluding that defendant
violated the law because she yelled at the officers and refused to obey
the order to leave the area, and because her physical presence was
obstructing the officer in the performance of his duty. See id. at 456;
see also Rogala v. District of Columbia, 161 F.3d 44, 53 (D.C. Cir. 1998)
(Rogala arrested for "disobeying [officer's] order to return to the car
after she had interfered with the field sobriety test that he had been
conducting); Reed v. State, 422 S.E.2d 15, 17 (Ga. Ct. App. 1992) (officer
in process of investigating defendant for driving under the influence when
defendant walked inside house and

disappeared, ignoring orders to stop); Patterson v. State, 381 S.E.2d 754, 755 (Ga. Ct. App. 1989) (after being stopped for speeding, driver exited
car and refused order to reenter the car; driver was verbally abusive and
stayed in dangerous spot in roadway); Washington v. Little, 806 P.2d 749,
751 (Wash. 1991) (conviction upheld where officer was investigating
defendants for criminal trespass when they ignored orders to stop).

On this point, we emphasize that we are not determining whether the
officer's direction was lawful or reasonable, or could result in the
seizure of defendant. See, e.g., People v. Gonzalez, 704 N.E.2d 375,
382-83 (Ill. 1998) (officer could order passengers in stopped car to
remain in car and could seize and frisk passenger who attempted to leave).
Nor are we determining the constitutional significance of the officer's
direction, specifically whether a seizure occurred because of the
direction. See, e.g., Maryland v. Wilson, 519 U.S. 408, 414-15 (1997)
(police officer may order passengers of lawfully stopped car to exit
vehicle without violating Fourth Amendment protections); State v. Caron,
155 Vt. 492, 500-01, 586 A.2d 1127, 1132 (1990) (although police officer's
order to exit car was further seizure, it was limited detention not
requiring probable cause). Cf. Dennis v. State, 693 A.2d 1150, 1152 (Md.
1997) (overturning conviction for disorderly conduct where passenger
disobeyed command to remain in vehicle and walked away, because command
was unconstitutional detention). Instead, the issue is whether the
failure to follow the officer's command is, by itself, a crime. We hold
that it is not.

We are left then with the question of whether defendant's walking to
the rear of the vehicle, along the passenger side, and trying to go
through or around the officer where he confronted her, constituted
hindering the officer in his arrest of Mr. Stone. As the officer
testified, there was nothing illegal about defendant exiting the vehicle
and walking in the parking

lot. There is no indication she was under arrest at the time at which she
allegedly committed the crime. We believe that she had a right to walk
away from the vehicle. While we understand that the case would be clearer
if she had chosen to walk directly away from her door, rather than along
the side of the car, we cannot find that fact determinative. Because she
had not yet reached the rear of the vehicle, there is no indication that
she intended to physically interfere with the arrest of her husband. Her
unwillingness to stop where the officer confronted her cannot be hindering
if she had a right to go where he blocked her way.

As noted above, in a challenge to the sufficiency of the evidence, the
standard on appeal is the same as that in the trial court. See Couture,
___Vt. at ___, 734 A.2d at 527 . Viewing the evidence in this case most
favorably to the State, and excluding modifying evidence, we cannot say
that the State has produced evidence fairly and reasonably tending to show
beyond a reasonable doubt that defendant violated 13 V.S.A. § 3001 as
charged.

Reversed.

FOR THE COURT:

______________________________________
Associate Justice

-----------------------------------------------------------------------------
Footnotes

FN1. Defendant was not charged with the narrower crime of hindering the
arrest of another. See 13 V.S.A. § 3018.

FN2. The dissent makes much of defendant's conduct after the officer
confronted her, relying on trial court "findings" that defendant
"confronted the officer" and "did physically interfere" with him. There
are no trial court fact findings; the court was explaining why it found the
evidence sufficient to support the charges. The court's characterization
adds nothing to the testimony which is described in the text.

Apparently, the dissent wants to consider defendant's act of
struggling with the officer during her arrest as hindering the arrest of
her husband. She was not charged with resisting arrest, a charge that
might have fit this conduct. In fact, she was not charged at all for this
conduct - it is not contained in the officer's affidavit in support of the
information, since it occurred after the officer announced he was placing
the defendant under arrest for hindering the arrest of her husband. We
fail to see how it adds to the charge for which she was arrested.

FN3. The State has not relied upon defendant's verbal communications to the
officer, and it is not clear what she said. The officer indicated that
when he was trying to converse with Mr. Stone, defendant entered the
conversation at times. He stated that the only thing she said when she
exited the car was "Oh, you're crazy, or this is crazy, or something along
those lines." Defendant never threatened the officer. There is no
indication that she stated that she intended to walk around to the
passenger side of the vehicle after she exited from it.

FN4. Virtually all states and many municipalities have established a crime
similar to that in § 3001. The exact wording varies. While the operative
word in 13 V.S.A. § 3001 is "hinder", statutes and ordinances elsewhere
use verbs, such as "obstruct", "interfere", "impede", or "resist." We note
that the decisions tend to ignore any potential differences in language,
and treat the statutes and ordinances as roughly equivalent. See Note,
Types of Activity Encompassed by the Offense of Obstructing a Public
Officer, 108 U. Pa. L. Rev. 388, 388-89 (1960). We also note, however,
that some statutes and ordinances specifically address a citizen's
obligation to respond to an order of a law enforcement officer. See City
of Portland v. Tuttle, 668 P.2d 1197, 1198 (Ore. 1983). We have no similar
statute applicable in this context. Our closest equivalent is a statute
requiring an operator to stop a motor vehicle when signaled to do so by a
law enforcement operator. See 23 V.S.A. § 1133(a).

------------------------------------------------------------------------------
Dissenting

No. 98-075

State of Vermont Supreme Court

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

Pamela L. Stone March Term, 1999

Mary Miles Teachout, J.

Robert Butterfield, Caledonia County Deputy State's Attorney, St. Johnsbury,
for Plaintiff-Appellee.

Robert Appel, Defender General, and Henry Hinton, Appellate Attorney,
Montpelier, for Defendant-Appellant.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

AMESTOY, C.J., dissenting. In its haste to establish a rule that a
law enforcement officer's order cannot be used to transform inoffensive
conduct into an act of hindering, the majority transforms defendant's
obstruction of an officer's lawful attempt to apprehend an escapee into a
walk in the parking lot. I respectfully dissent.

Contrary to the majority's characterization, the issue in this case is
not "whether the failure to follow the officer's command is, by itself, a
crime." Ante, at 9. It is, instead, whether the evidence viewed in a
light most favorable to the State and excluding any modifying evidence, is
sufficient to fairly and reasonably support a finding beyond a reasonable
doubt, see State v. Sage,

161 Vt. 633, 635, 641 A.2d 115, 116 (1994) (mem.), that defendant was
guilty of hindering a law enforcement officer. As the majority accurately
notes, we have defined "hinder" as "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, 162 Vt. 331,
334, 647 A.2d 1009, 1009 (1994).

The officer's lawful objective was to apprehend defendant's husband,
John Stone, who had been placed on escape status by the Vermont Department
of Corrections. The evidence, when viewed in the light most favorable to
the State, demonstrated that defendant engaged in the following acts when
the officer sought to remove the escapee from defendant's automobile:

(1) Defendant left the automobile despite the officer's instruction
that she remain in the car.

(2) Defendant refused to return to the car despite the officer's
order that she do so.

(3) Defendant moved from the driver's side of the vehicle toward
the rear of the car in a quick and determined manner carrying
an object in her hand.(FN1)

(4) Defendant refused to return to her car despite the officer's
warning that she would be arrested.

(5) Defendant advanced toward the officer and tried to get around him.

(6) As the officer attempted to arrest defendant, she tried to pull
away from the officer's grasp.

The question of whether defendant's acts "made more difficult" the
officer's progress toward accomplishing his objective of arresting the
escapee is best answered by the officer's testimony of what next occurred:

[State's Attorney]: Now, at that point . . . when you went to
grab her wrists, what was Mr. Stone doing?
[Officer]: When I reached for Mrs. Stone, Mr. Stone
immediately got out of the passenger side of the car, and the situation
that I feared could possibly happen began to unfold.
Q: Did he say or do anything when he got out of the car?
A: Yes, he said words to the effect of, "Get your f-in' hands
off my wife," or "Get your hands off my f-in' wife," or something to
that effect.
Q: All right, and what did he do?
A: He got out of the passenger side of the car and just started
marching towards me and Mrs. Stone, and at that time, she still was
not in handcuffs . . . My attention now was going back and forth
between Mrs. Stone who I'm trying to hold onto her wrists and she's
trying to pull away from me. And I'm looking over, trying to watch
the passenger side of the car and now Mr. Stone is . . . marching
towards me and now I can see that there's going to be some type of a
confrontation.

. . .
Q: Now, what did you do at that juncture when he refused to
return to the car?
A: While I was holding on to Mrs. Stone, I knew that she
hadn't been searched, her pocketbook hadn't been searched. I didn't
feel comfortable just cutting her loose because I didn't know what
was going to happen when I turned my back to deal with him, so I
reached down and pulled my sidearm out and brought it up. I was
screaming at him to get back into the car, get back into the car and
had the gun on him. And at that point, he continued advancing on my
location, closing the distance, and he lifted his arms when he saw the
gun, and he said, "Go ahead and f'in shoot me," and kept walking
towards me and I was still holding on to Mrs. Stone at that point, and
he continued to approach my location, and that's when a physical
encounter occurred.

. . .

Q: Now, up to this point in time, were there any other officers
present at the scene?
A: No, I was still all alone.(FN2)

In its attempt to frame the issue of this case as solely one of
disobedience to an officer's command, the majority not only modifies the
State's evidence, it modifies the trial court's view of the evidence. The
court did not, as the majority asserts, find only that "if defendant
hindered the arrest, it is because she left in contradiction of the
officer's orders and did not immediately proceed away from the car . . .
." Ante, at 5. The court concluded that the State presented sufficient
evidence of hindering a police officer because in addition to refusing to
reenter the car in response to the officer's order, defendant
"confront[ed] the officer . . . [and] physically interfere[d] with his
ability to attend to a very difficult, agitated, and unruly person that
the officer was taking into custody." (Emphasis added.)

Defendant's theory of the case was that she exited the car "to remove
herself from harm's way." At trial, she argued her theory to the jury
(FN3) and received an instruction that put her defenses squarely before
it.(FN4) The majority might have returned a different verdict, but it
cannot be seriously

maintained that the jury lacked sufficient evidence upon which to conclude
that defendant had hindered a law enforcement officer. The State argued
that there was "actual, physical interference" by defendant, and it proved
its case. While there may be much to be said about a rule of law that
prohibits an officer from transforming inoffensive conduct into criminal
conduct by mere disobedience of his order, it is not so compelling that it
must be established before we have a case to which it can be properly
applied.

The State's evidence of hindering far exceeded the mere failure to
obey an officer's command. Defendant's acts exacerbated a dangerous
situation. The ensuing confrontations between the escapee and the officer
placed both the officer's and defendant's safety at risk. To say that
defendant's conduct hindered Sgt. Goodell's performance of his duty
considerably understates the predicament of an officer faced with the
obligation to arrest an escapee in the remote area of a darkened parking
lot. Indeed, the scene was only secured when another officer arrived.
Here, "[d]efendant's actions far exceeded a reasonable response to the
circumstances, even had she reasonably perceived a threat to herself . . .
when the [officer] first arrived." Oren, 162 Vt. at 336, 647 A.2d at
1012-13.

I dissent.

_______________________________
Chief Justice

------------------------------------------------------------------------------
Footnotes

FN1. The majority's statement that the officer testified that "there was
nothing illegal about defendant exiting the vehicle and walking in the
parking lot," ante, at 9-10, paraphrases the officer's responses to
defendant's cross-examination questions. As the officer explained shortly
after, he did not believe that her actions were as legally innocuous as
the majority represents:

[Defense Counsel]: And all she was doing was walking away from the car?
[Officer]: I didn't know what she was doing, I had no idea what her intent
was, sir.
Q: Well, you knew that she was walking away from the car?
A: I knew that she was getting out of the car.
Q: And you saw her walking next to the car?
A: That's right.
Q: In a direction away from the car?
A: Back towards the rear of the vehicle.

FN2. The majority's assertion that the evidence of defendant's
continuing confrontation with the officer adds nothing to the charge for
which she was arrested ignores its relevance to the credibility of
defendant's theory of the case. The actions of defendant were inconsistent
with the explanation that she was innocently attempting to remove herself
from the scene.

FN3. In his closing argument, defense counsel argued:

You have a right in this country to get yourself out of a bad situation
if you haven't done anything wrong. That's all she did, she got out
of the . . . car and was walking away. She had a right to do that. It
may have made Officer Goodell's job more difficult, and we all
agreed that a police officer's job is difficult . . . but she wasn't doing
anything unlawful.

FN4. The court's instruction included the following:

Finally, the State must prove that defendant had no legal right to
hinder the officer. If defendant had a legal right to take the action she
did, then she's not prohibited from doing so simply because it might
make a law enforcement officer's duties more difficult.

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