State v. Danaher

State v. Danaher (2001-469); 174 Vt. 591; 819 A.2d 691

[Filed 20-Nov-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-469

                               MAY TERM, 2002


  State of Vermont                   }           APPEALED FROM:
                                     }
                                     }
       v.                            }           District Court of Vermont,
                                     }           Unit No. 2, Chittenden Circuit
  Martin M. Danaher                  }
                                     }           DOCKET NOS. 6361/6362-10-00Cncr

                                                 Trial Judge: Michael S. 
                                                              Kupersmith

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

        1 Defendant Martin M. Danaher appeals the trial court's finding
  that he violated the "no contact" condition of his probation.  On appeal,
  defendant argues that the court erred in concluding that he violated the
  "no contact" probation condition by being in physical proximity to the
  victim and that he was not provided fair notice that such actions
  constituted "contact."  We affirm.

        2 On October 11, 2000, defendant was charged with one felony
  count of lewd and lascivious conduct with a child, G.D., and two counts of
  prohibited acts with the same victim.  On January 31, 2001, pursuant to a
  plea agreement, he pled no contest to the charge of lewd and lascivious
  conduct and to one count of prohibited acts.  In exchange for his plea,
  defendant was placed on probation and received a deferred sentence.  Both
  the probation and the deferred sentence included the condition that
  defendant have "[n]o contact with G.D. or her family without their prior
  consent and prior approval of the P[robation] O[fficer]."  Further,
  defendant was required to reside outside of his home and not have overnight
  visits there until his probation officer and sex offender counselor
  approved.  Defendant could, however, be at his home during the day, but if
  his children were present, his wife was to supervise. 

        3 Defendant's probation officer testified that on February 28,
  2001, she met with defendant to review his conditions of probation and
  explain what was expected of him.  She also testified that while discussing
  the terms of the "no contact" provision, they discussed the fact that
  defendant lived up the hill from a residence frequented by G.D.  The
  probation officer testified that she told defendant  "he's not to have any
  contact with [G.D.].  That he shouldn't be down there when [G.D.] is down
  there."

        4 At all times pertinent to this case, G.D. lived on Kelly Road
  in Underhill.  One of her close friends, Kaitlyn Corbett, lived with her
  family on Russin Road, a small, private residential road.  Defendant also
  lived on Russin Road.  Although there is no road connecting Kelly Road with
  Russin Road, a path connects the two.
   
        5 On May 14, 2001, G.D. and Kaitlyn drove an ATV from the
  former's home to the latter's home.  As they approached the Corbetts'
  residence, they saw defendant on Russin Road 

 

  feeding his horse.  Defendant was also able to observe the two girls.  At
  that time, defendant was boarding his horse on the Corbetts' property.

        6 After G.D. and Kaitlyn arrived at the Corbetts' home,
  defendant came toward them, apparently to put his horse in the Corbetts'
  pasture, which was located near the Corbetts' barn.  As he approached, G.D.
  brought one of the Corbetts' dogs into the Corbetts' house to prevent it
  from scaring the horse.  She then returned to do the same with another dog. 
  When defendant opened the gate to the pasture, Kaitlyn's horse exited.  As
  the girls attempted to secure Kaitlyn's horse, defendant remained within
  proximity to the girls and watched.  He offered to help, but Kaitlyn
  declined his offer.  Though Kaitlyn asked defendant to leave, he did not do
  so. (FN1)  Defendant remained in proximity to G.D. for approximately fifteen
  minutes, following her with both his eyes and body posture.  At one point
  defendant was no more than ten feet from G.D.  Eventually, defendant left.

        7 The following day, May 15, G.D. was waiting for the school
  bus with Kaitlyn at a bus stop located at the bottom of Russin Road. 
  According to G.D.'s testimony, defendant saw her as he drove up, stopped,
  then called to his own daughters who were also waiting at the bus stop.  He
  rolled down his window and kissed both of his daughters.  He stared at G.D.
  during this event, which lasted approximately four minutes.  No evidence
  was presented regarding the physical distance between defendant and G.D.

        8 Three other incidents involved defendant staring at G.D.  One
  was brief and involved defendant pulling onto Russin Road, seeing G.D. at
  the Corbett residence, and slowing down and staring at G.D. as he drove
  past.  The other lasted over an hour and involved defendant continually
  staring at G.D. while she was riding her horse.  On a third occasion,
  defendant and his wife were walking their horses down Russin Road.  G.D.
  and others were at the Corbett residence helping a veterinarian treat one
  of the Corbetts' horses.  When defendant and his wife came within fifty
  feet of the group, they stopped briefly, then turned and went back toward
  their own home.  Defendant's wife testified that as soon as she saw G.D.
  she told defendant, "She's here. We need to turn around and go back home." 
  Defendant, according to his wife, agreed.  When asked why she made that
  statement to her husband, she testified  "he is not allowed to have contact
  with her."  The trial court found that while these three instances did not
  constitute contact, they provided circumstantial evidence from which it
  could be inferred that the two May incidents were not inadvertent.

        9 The trial court found that the defendant had violated the "no
  contact" condition of both his probation and the deferred sentence warrant. 
  It directed the court clerk to set a time for sentencing.  Defendant
  appeals the trial court's decision to this Court.

        10 The first claim defendant makes on appeal is that neither of
  the two events relied upon by the court to revoke his probation amounted to
  "contact" in violation of the "no contact" provision of his probation. 
  Findings of fact fairly and reasonably supported by any credible evidence
  must stand.  State v. Sanborn, 155 Vt. 430, 436, 584 A.2d 1148, 1152
  (1990).  This Court will uphold the trial court's legal conclusions if
  reasonably supported by its factual findings.  Id.
   
 

        11 As described in the trial court's findings, the first
  probation violation the court relied upon to revoke defendant's probation
  took place on May 14.  Defendant saw G.D. and Kaitlyn ride an ATV to
  Kaitlyn's home.  Despite the probation officer's instruction not to "be
  down there [at Kaitlyn's residence] when [G.D.] is down there," defendant
  placed himself in physical proximity to G.D. and remained there for
  approximately fifteen minutes, even after Kaitlyn had asked him to leave. 
  This reasonably supports the trial court's conclusion that defendant
  intentionally placed himself in physical proximity to G.D. in violation of
  the "no contact" condition of his probation.

        12 The court further found that on May 15, when defendant placed
  himself in proximity to G.D. at the bus stop and stared at her, he
  intentionally violated the "no contact" provision of his probation.  The
  court opined that to avoid violating this provision, he should have driven
  by the bus stop without stopping near G.D.  On appeal, defendant claims
  that since there was no evidence or testimony regarding his distance from
  G.D. during this event, the court could not infer that he was close enough
  to be within "proximity" to her.  This Court may presume that the lower
  court properly inferred essential facts from its factual findings.  Plant
  v. Ahlberg, 104 Vt. 16, 19, 156 A. 535, 536 (1931).  Both G.D. and
  defendant's daughters were waiting at the same bus stop.  There is no
  reason the court could not properly infer that by coming near his daughters
  at their bus stop while he knew G.D. was also present, defendant purposely
  put himself within physical proximity to G.D.  See State v. J.T., 683 A.2d 1166 (N.J. Super. Ct. App. Div. 1996) (using totality of circumstances to
  draw inferences is an acceptable practice for a trial court).

        13 Defendant also claims that he was not given fair notice of
  what constituted "contact" for the purposes of the "no contact" provision
  of his probation.  "Due process requires that the defendant receive fair
  notice as to what acts may constitute a violation of his probation, thereby
  subjecting him to loss of liberty."  State v. Gleason, 154 Vt. 205, 216,
  576 A.2d 1246, 1252 (1990) (internal quotations omitted).  When a violation
  of a condition would not by itself amount to a criminal act, due process
  mandates actual notice.  Mace v. Amestoy, 765 F. Supp. 847, 849 (D. Vt.
  1991).  "The instructions and directions given to a defendant by a
  probation officer or the court can also serve to provide fair notice." 
  Gleason, 154 Vt. at 216, 576 A.2d  at 1252.

        14 We will not disturb the trial court's finding regarding
  notice if the record contains any credible evidence that fairly and
  reasonably demonstrates that defendant received fair and actual notice. 
  See id. at 271, 576 A.2d  at 1255.  Defendant's probation officer testified
  that she met with defendant to review his probation conditions and explain
  what was expected of him.  With regard to the "no contact" provision, the
  probation officer instructed defendant that "he's not to have any contact
  with [G.D.]," and when G.D. was at the Corbett's home, he should not be. 
  Despite this instruction, defendant intentionally placed himself within
  proximity to G.D. on both May 14 and May 15, 2001.
   
        15 The trial court reasoned that defendant was put on fair
  notice of what constituted contact because "contact" is an ordinary term,
  and it was used in accordance with its everyday meaning.  On appeal,
  defendant argues that the court used only one of many definitions of
  "contact" available in other dictionaries.  He further argues that these
  other definitions do not contain the idea of "proximity," which was
  integral in the court's conclusion.  The existence of multiple definitions

 

  of a common term does not render that term ambiguous or vague. (FN2) 
  Douglas v. State, 747 A.2d 752, 757 (Md. Ct. Spec. App. 2000).  Expecting
  mathematical certainty of language is unreasonable.  State v. Schmitz, 617 N.W.2d 908 (Wis. Ct. App. 2000) (internal citation omitted).  It is not
  unreasonable for the trial court to expect a person to understand that
  proximity is contained within the ordinary meaning of contact.  City of
  Defiance v. Mohr, 1991 WL 104348 (Ohio Ct. App. 1991) (holding proximity
  within the definition of "contact").  Moreover, this Court has found
  proximity contained within the meaning of contact.  In State v. Leggett,
  167 Vt. 438, 709 A.2d 491 (1997), this Court found support for a violation
  of probation when the defendant was in a home where two girls under the age
  of sixteen were present and the terms of his probation prohibited contact
  with children under that age.  Other than mere presence, the decision in
  Leggett reflects no communication or physical contact to support the
  finding of a violation.  See id.  Accordingly, defendant can fairly be
  charged with notice that the intentional placement of himself in physical
  proximity to his former victim qualifies as contact.

        16 Defendant misunderstands the purpose of a "no contact" order
  by minimizing the two May incidents as "brief, public, and inadvertent." 
  The purpose of a "no contact" order is to protect the victim from future
  occurrences of the behavior which initially resulted in the order.  State
  v. Schultz, 48 P.3d 301, 309 (Wash. 2002); cf. Rockhold v. Dist. Court For
  Muscatine County, 2002 WL 570718 (Iowa Ct. App. 2002).  Furthermore, the
  trial court found that these incidences of contact were not inadvertent,
  but intentional.  See Benson v. Muscari, 172 Vt. 1, 4, 769 A.2d 1291, 1295
  (2001) (State must show only that defendant intended to do the act that
  constituted the violation).  The court considered other incidents involving
  defendant and G.D. which, while not amounting to probation violations,
  provided circumstantial evidence that the violations found were
  intentional.  The court may properly make circumstantial inferences
  regarding whether contact was accidental.  See Commonwealth v. Tate, 612 N.E.2d 686, 689 (Mass. App. Ct. 1993) (judge in probation revocation
  proceedings could find that defendant's presence on the street where victim
  lived was not coincidental and that defendant's encounter with her had been
  contrived by him).

        17 The trial court correctly found that defendant intentionally
  engaged in conduct that violated the "no contact" provision of his
  probation.  The record, as summarized above, supports the court's finding
  that defendant had fair notice of what was required of him while on
  probation.

       Affirmed.

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                                 Dissenting


        18 DOOLEY, J., dissenting.   Defendant has engaged in conduct
  that is undesirable and upsetting to the minor victim of the sex crime for
  which he has been convicted and is on probation.  On numerous occasions he
  has placed himself in the position to watch and stare at the victim, on one
  occasion for more than one hour.  During none of these incidents has
  defendant attempted to touch the victim, to communicate with her, or to
  seek communication from her.

 
   
        19 I agree that probation conditions could have been crafted to
  prevent defendant's actions and should have been so crafted.  One of the
  ironies of this case is that the court has now redrafted the conditions to
  draw very clear lines that prohibit defendant's actions.  However, I cannot
  agree that the probation conditions that were in effect clearly prohibited
  defendant's actions or gave clear notice of what was prohibited.  This
  deficiency is exacerbated by two additional factors: (1) one of the
  violation holdings - that related to the bus stop incident - is not
  supported by sufficient findings or evidence; and (2) the initial probation
  conditions and actions of the probation officer made inevitable that there
  would be "contact," as defined by the trial court, between defendant and
  the victim.

        20 The result, I fear, is that we are punishing defendant not
  because he violated the conditions imposed upon him, but because he
  violated the conditions that hindsight shows should have been imposed upon
  him.  I cannot conclude that this result is consistent with the fundamental
  fairness that should pervade a decision to incarcerate a probationer and,
  therefore, dissent.

        21 The complaint that started this case contained a one
  paragraph affidavit of the probation officer, reporting a statement of the
  victim that defendant was watching her and would not leave the Corbett barn
  immediately when he saw her.  The victim said that defendant was "making
  her feel uncomfortable with his presence."  The complaint did not suggest
  that the violation consisted of defendant placing himself in the
  "proximity" of the victim.  Nor was there any allegation that defendant
  tried to communicate with the victim or touch her.

        22 In finding "contact" in two of the five incidents reported by
  the probation officer, the trial court relied upon an alternative
  definition found in one dictionary.  The definition is: "b. The state or
  condition of touching or of immediate proximity."  As defendant pointed
  out, the dictionary definitions of "contact" vary, but only a few go beyond
  actual touching - that is, physical contact - or communication; neither of
  which is found here.  See 3 The Oxford English Dictionary 805-06 (2d ed.
  1989); Webster's Third New International Dictionary 490 (1965); The
  American Heritage Dictionary 395 (4th ed. 2000).  We do not give fair
  notice of the obligations created by probation conditions by adopting a
  meaning that the probationer can ascertain only if he has the right
  dictionary. (FN3) 
   
        23 While the definition adopted by the trial court is debatable,
  I think the next leap of logic is not.  The trial court went on to drop the
  modifier "immediate" and held that presence in 

 

  proximity to the victim is sufficient.  In this logical leap, the notion
  that proximity can be so close as to be the functional equivalent of
  touching is lost.

        24 There is still a third logical leap in the finding of a
  breach of the condition in the bus stop incident.  The State failed to show
  how close to the victim defendant came when he greeted his children.  The
  majority skates over this with the observation that "the lower court
  properly inferred essential facts from its factual findings" because
  defendant greeted his daughters "while he knew G.D. was in the vicinity." 
  (Emphasis supplied).  Even if I agreed that a court can infer essential
  facts without evidence, I cannot accept the slow loosening of the
  definition of contact in which physical contact goes to immediate proximity
  and then to proximity and finally to being in the vicinity.  Oddly, in
  response to one of the other charges, the trial court found that being
  fifty feet from the victim was not sufficient proximity to be a violation
  of the condition.  Nothing in the testimony shows that defendant and the
  victim were within fifty feet of each other at the bus stop.

        25 To be sure, I do not believe that the trial court can infer
  essential facts with no evidence to support the inference.  Our precedents
  require that the court's conclusions be supported by its findings and by
  the evidence.  See State v. Austin, 165 Vt. 389, 397, 685 A.2d 1076, 1082
  (1996).  The case on which the majority relies deals with mental elements
  that are mixed questions of fact and law in a civil case.  Plant v.
  Ahlberg, 104 Vt. 16, 19, 156 A. 535, 536 (1931) is a deceit case in which
  the trial court found that the defendant defrauded the plaintiff in the
  sale of a truck without finding specifically that the defendant intended to
  deceive the plaintiff or that the plaintiff relied on the defendant's
  misrepresentation in deciding to buy the truck.  This Court held that these
  elements of the tort could be inferred from the facts found.  Id.  The
  important point about Plant is that mental elements almost always have to
  be inferred from subsidiary facts, and the evidence existed to make that
  inference.  Here, the element of physical distance, made an element by the
  court's construction of "contact," cannot normally be inferred from other
  facts, and, in any event, no subsidiary facts or evidence from which to
  draw such an inference are present in this case.

        26 I would reverse the decision to revoke probation based on the
  bus stop incident.  Since we cannot know what sentence would have been
  imposed if the court had found one, but not two, violations of probation
  conditions, this reversal alone would require a remand for resentencing. 
  See State v. Higgins, 147 Vt. 506, 508, 519 A.2d 1164, 1166 (1986) (per
  curiam).

        27 I would not, however, remand because I would reverse both
  probation violation conclusions.  I acknowledge that the validity of the
  second violation determination, based on the Corbett residence incident, is
  closer, primarily because of the instructions of the probation officer and
  the evidence of specific distance, but I still do not believe the violation
  could be found on the court's theory.
   
  28 First, the court never found that defendant violated the specific
  instructions of the probation officer, probably because they were phrased
  as advice and not as a command.  Thus, the majority has relied upon facts
  not found by the trial court. (FN 4)   In fact, the trial court's decision
  rests on 

 

  the same proximity theory as employed in finding a violation for the bus
  stop incident.  As stated above, I cannot accept that theory.

        29 Second, 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.  See State v. Moses, 159 Vt. 294,
  300, 618 A.2d 478, 481 (1992).  The court imposed a prohibition on contact,
  not a distance or presence restriction, and the probation officer had no
  power to amend that restriction.

        30 Third, and most important, the probation officer's direction
  was ambiguous, if not contradictory.  The exact phrasing of the language
  relied upon by the majority is: "he shouldn't be down there when she is
  down there."  (Emphasis supplied).  This is not the language of command, as
  asserted by the majority.  I suspect, as I stated above, that the phrasing
  of the statement is why the trial court never mentioned it in its findings.

       31 I say "contradictory" because the probation officer also later
  authorized defendant to move back into his house nearby to the Corbett
  residence  (FN 5) and allowed him to board his horse in the Corbett
  pasture. (FN6)  Given these actions and the fact that the victim's good
  friend was a Corbett daughter, it was almost certain that defendant and the
  victim would come in proximity with each other.  Thus, if presence in
  proximity of the victim is the violation, the actions of the probation
  officer virtually insured that the violation would occur.
          
        32 The trial court's approach in this case is reminiscent of the
  trial court's approach in State v. Goyette, 166 Vt. 299, 691 A.2d 1064
  (1997), in which the defendant was convicted by jury of violating an abuse
  prevention order by harassment of the victim under a definition of
  "harassment" so broad that "virtually any conduct by defendant causing
  disagreement between the parties or concern on the part of complainant
  could have resulted in defendant's criminal liability."  Id. at 303, 691 A.2d  at 1067.  We reversed because the breadth of the charge went beyond
  any reasonable definition of harassment.  Id. at 304, 691 A.2d  at 1067. 
  Here, the term "contact" 

 

  has been defined unreasonably broadly to cover conduct because it bothers
  the victim.  For the same reason that we reversed in Goyette we should do
  so here.

        33 In summary, when we are dealing with the liberty of the
  probationer, I believe we must insist that probation conditions contain the
  kind of bright line that enables the probationer to know precisely what is
  expected of him.  Ironically, the trial court recognized this in
  resentencing defendant to jail time and new probation conditions.  Those
  conditions provide:

    22.  Defendant is not to place himself intentionally within 200
    feet of G.D. or remain within 200 feet when her presence becomes
    known.  Anytime defendant is notified of G.D. visiting the Corbett
    residence or observing G.D. at the Corbetts, defendant is not to
    place himself or remain in view of G.D. or of Corbett's residence. 
    When driving on Russin Road, defendant is to maintain an
    appropriate speed and not take special notice of what is happening
    on Corbetts property.

    23.  "Contact" includes physical proximity and any form of
    communication.

  If the original sentence had contained comparable conditions, I doubt this
  case would have arisen.  The defendant is entitled to predictable
  restrictions, but did not receive them here.

       34 I dissent.






  Dissenting:                          BY THE COURT:

  _________________________________    __________________________________
  John A. Dooley, Associate Justice    Jeffrey L. Amestoy, Chief Justice

                                       ____________________________________
                                       James L. Morse, Associate Justice

                                       _____________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice



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                                  Footnotes


FN1.  The dissent takes issue with the trial judge's interpretation of the
  evidence and his finding that Kaitlyn asked defendant to leave.  Apparently
  defense counsel interpreted the testimony in the same manner and conceded
  in closing argument that Kaitlyn had asked defendant to leave.

FN2.  Defendant relies on The American Heritage Dictionary, Second College
  Edition, 1985, in support of his contention that proximity is not a form of
  "contact."  This Court notes, however, that an updated version of that
  dictionary has amended its definition of "contact" to include: "[T]he state
  or condition of touching or of immediate proximity . . . [V]isual
  observation."  The American Heritage Dictionary, Fourth Edition, 2000.
  (emphasis added)

FN3.  The majority suggests we adopted this definition in State v. Leggett,
  167 Vt. 438, 709 A.2d 491 (1997), a case in which the defendant's probation
  condition prohibited any contact with a child under sixteen years of age
  and in which the evidence showed the defendant was residing with, or was
  frequently in the home of, a woman and her seven-year-old daughter who
  called him uncle.  The definition of "contact" was not raised in Leggett,
  probably because the defendant 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.  The
  comparison to Leggett is, if anything, a demonstration of how elastic the
  definition of "contact" can be to fit the facts, exactly my concern.  The
  suggestion of the majority is that continuous presence in the home with a
  child is the same "contact" as presence in a car by a bus stop some unknown
  distance from the victim who is standing outside.

FN4.  Although it is not determinative, I also disagree with the finding of
  the trial court, albeit stated in the court's conclusions, and relied upon
  by the majority, that Kaitlyn Corbett "asked [defendant] . . . to leave." 
  The finding is clearly erroneous.  Both the victim and Kaitlyn testified
  that Kaitlyn told defendant that his presence was unnecessary to help
  retrieve her horse so he could leave.  Neither asked him or told him to
  leave.  The fact that defense counsel did not dispute this finding does not
  create evidence where there is none.

FN5.  According to the probation officer, defendant was initially prohibited
  from overnight presence at his home.  During this time, he was allowed to
  be present at any time during the day, and he routinely stayed throughout
  the day at his home.  On June 1, after both the bus stop and Corbett
  residence incidents, the probation officer allowed defendant to return to
  overnight residence at his home.  Apparently, she knew of both incidents
  when she removed the restriction on overnight presence.

FN6.  At the same time as she allowed defendant to resume overnight
  residence at his home, she prohibited defendant from being on the Corbett
  property without the consent of the Corbetts, which apparently never was
  given.  The evidence suggests that in response to this restriction,
  defendant moved his horses to an adjoining pasture owned by his brother.