State v. Coyle
Annotate this Case
State v. Coyle (2004-098); 178 Vt. 580; 878 A.2d 1062
2005 VT 58
[Filed 12-May-2005]
ENTRY ORDER
2005 VT 58
SUPREME COURT DOCKET NO. 2004-098
NOVEMBER TERM, 2004
State of Vermont } APPEALED FROM:
}
} District Court of Vermont,
v. } Unit No. 1, Windsor Circuit
}
Bradford Coyle }
} DOCKET NO. 332-4-97 Wrcr
Trial Judge: Theresa S. DiMauro
In the above-entitled cause, the Clerk will enter:
¶ 1. Defendant appeals the Windsor District Court's conclusion
that he violated a condition of his probation by failing to complete sex
offender treatment. The court found that the director of the treatment
program discharged defendant from the group because of his willful failure
to follow the group's rule that specifically prohibits unapproved contact
with defendant's victims and other minor children. Defendant claims that
the trial court erred by failing to make an express finding that
defendant's contact with his victim was intentional and not inadvertent.
Defendant claims that, without such a finding, his termination from his sex
offender treatment program in violation of his probation cannot be upheld.
We conclude that the court did in fact make the required,
adequately-supported findings and conclusions. Therefore, we affirm.
¶ 2. In 1997, defendant pled guilty to and was convicted of lewd
and lascivious conduct with his nine year old stepdaughter J.N. He
received a sentence of three to five years in prison, which was all
suspended. In lieu of incarceration, the court placed defendant on
supervised probation.
¶ 3. The court imposed a number of standard and special probation
conditions including condition 14, which required defendant to "attend,
[and] participate in sex offender treatment as directed by your probation
officer." Special condition 4 elaborated on defendant's obligation under
condition 14, mandating that defendant "shall attend and satisfactorily
participate in sexual behavior counseling and will not be discharged
without satisfactory completion all as determined by your counselor and
probation officer." In addition, special condition 14 prohibited defendant
from having "contact with the victim(s) in this case," including "any
physical, visual, written or telephone contact with such persons."
(Emphasis added).
¶ 4. By April 2003, Mr. Coyle had been on probation for a period
of six years. During that time, he had participated in the sex offender
treatment program run by Kieran Zito. Though he had moved on to the
aftercare phase of the program, an incident in Feburary 2003, involving
unsupervised contact with a minor, led Zito to impose a stricter
supervision regime requiring defendant to report on his progress weekly
instead of monthly. Despite defendant's relative success in the program,
he did have a history of violating the group's child contact guidelines,
and as a result had been warned or placed on probation several times.
¶ 5. On April 10, 2003, defendant was arrested for violating,
among others, special condition 14's prohibition against all forms of
contact with any of defendant's victims. J.N. complained of the contact
after encountering defendant at the Price Chopper. She averred that she
was getting out of her car in the Price Chopper parking lot when
defendant's car pulled in diagonally across from hers. J.N. testified that
defendant made eye contact with her and walked into the store directly
behind her. She further stated that as she walked to the customer service
desk, defendant followed her and stood directly behind her in the line.
Her statement gives no indication that he made any attempt to initiate
conversation or further eye contact with her once inside the store,
although he did have to move out of her way as she was leaving the customer
service area. When the police arrived to arrest defendant later that day,
he claimed that he was oblivious to any victim contact that happened
earlier that day. When he was told that it occurred at the Price Chopper,
he insisted that he had not recognized any of his victims there.
¶ 6. Following defendant's arrest for the alleged contact
violation, Zito sent a letter to defendant's probation officer, advising
that he was terminating defendant from the treatment group. The letter
states that the "basis for this termination arises from Mr. Coyle's recent
unapproved contact with a minor child, it's important to note that this
contact involved his victim of record." The letter goes on to recount
another incident involving unsupervised contact with a minor earlier that
year, and concludes with Zito's observation that "Mr. Coyle appears to be
engaging in a willful pattern of disregard for his treatment guidelines
prohibiting contacts with minors." Based on this notice of termination,
defendant was charged with a second violation of probation, specifically
condition 14's requirement that defendant participate in sex offender
treatment as directed by his probation officer.
¶ 7. The district court held a violation of probation merits
hearing on both the alleged contact and termination of treatment
violations. During the hearing, the court heard testimony from Zito, J.N.,
and defendant. The testimony focused on two main areas: defendant's
performance history in the treatment group, and the events surrounding the
alleged Price Chopper contact with J.N. At the conclusion of the hearing,
the court ruled that the State had met its burden by showing that defendant
had been terminated from his sex offender treatment program in violation of
condition 14. The court made no determination on the alleged violation of
the no-contact probation condition, although it did consider whether the
evidence supported Zito's conclusion that defendant violated the no-contact
policies of the treatment group. The court then considered whether
defendant had persuaded the court that his termination from the group was
not the result of his willful conduct, but instead resulted from factors
beyond his control. After recounting defendant's history of violating the
treatment group's no-contact policies, the court analyzed the two incidents
specifically referenced in Zito's letter of termination. The court found
that defendant's assertion that he did not recognize J.N. at the Price
Chopper lacked credibility. Accordingly, the court held that defendant had
not met his burden of showing that his expulsion from treatment resulted
from factors beyond his control because his failure to remove himself from
proximity to J.N. after recognizing her was contrary to group policy and
amply justified Zito's decision to terminate him.
¶ 8. The State bears the burden of proving probation violations by
a preponderance of the evidence. State v. Austin, 165 Vt. 389, 398, 685 A.2d 1076, 1082 (1996). This is a mixed question of fact and law. Id.
The court must make a factual determination of what actions the probationer
took, and then an "implicit legal conclusion that certain acts constitute a
violation of the probationary terms." Id. (quotations omitted). The State
makes out its prima facie case by showing that there has been a violation
of a probation condition whose requirements were known to the probationer.
Id. If the State meets its initial burden, the probationer must show that
his violation was not willful, but instead resulted from factors beyond his
control and through no fault of his own. Id. The intent element in
no-contact cases safeguards a defendant's constitutional right to due
process by ensuring that a defendant's probation is not violated because of
accidental or inadvertent conduct. See Benson v. Muscari, 172 Vt. 1, 4-5,
769 A.2d 1291, 1295 (2001) (recognizing that a probationer cannot be
criminally convicted for violating an abuse prevention order containing a
no-contact buffer zone around the victim unless the State can show that
probationer intended to place himself within the prohibited distance from
the victim); see also State v. Bubar, 146 Vt. 398, 405, 505 A.2d 1197,
1201-02 (1985) (noting that compliance with probation conditions "may not
be put beyond the probationer's control."). For example, n State v.
Danaher, we affirmed the trial court's conclusion that the probationer had
violated the no-contact condition of his probation because circumstantial
evidence supported the trial court's finding that the alleged contact
incidents were "not inadvertent, but intentional." 174 Vt. 591, 594, 819 A.2d 691, 695 (2002) (mem.).
¶ 9. When determining the merits of a probation violation based on
a probationer's expulsion from a court-ordered treatment program, the
ultimate question for the court is whether the probationer participated
satisfactorily in the program. State v. Masse, 164 Vt. 630, 631, 674 A.2d 1253, 1255 (1995) (mem.). Here, however, as Zito's letter of termination
and his testimony at the merits hearing makes explicit, the issue of
defendant's satisfactory participation is linked directly to his alleged
inability to abide by the group's no-contact rules. Thus, even though the
trial court did not announce a conclusion on the alleged violation of the
no-contact probation condition, our analysis must heed the constitutional
considerations involved in normal no-contact condition cases. See id. at
631-32, 674 A.2d at 1255-56 (rejecting claim that
termination-from-treatment violations are reviewed for an abuse of the
terminating officer's discretion, and noting specifically that trial
court's decision properly avoided considering reasons for termination that
might have implicated probationer's constitutional rights).
¶ 10. Defendant argues that the trial court erred in finding a
violation because the State failed to show that the contact with J.N. at
the Price Chopper was intentional as required by Danaher. In light of the
evidence presented on defendant's familiarity with J.N. generally; his
ability, one day later, to specifically describe her physical appearance at
the Price Chopper on the previous day in spite of his claim not to have
recognized her; the group's contact guidelines, the boundaries of which
defendant was undisputably aware; and defendant's history of similar
incidents while in the group, we hold that the trial court's findings are
sufficient to support its conclusions that defendant intentionally failed
to remove himself from the Price Chopper after recognizing his victim, and
that his failure violated the group's no-contact policies. See Austin, 165
Vt. at 398, 685 A.2d at 1082 (stating that this Court will affirm findings
of fact fairly supported by any credible evidence, and conclusions of law
reasonably supported by the findings).
¶ 11. Based on defendant's own testimony, the court found that
defendant knew that victim contact was expressly prohibited by the rules of
the group as outlined broadly in the group treatment contract, as well as
the probation conditions themselves. Defendant specifically "acknowledged
that he's been in group with Mr. Zito and is aware of the policies within
that group to have no unsupervised contact." As part of its findings on
the group's policies and defendant's awareness of them, the court cited an
incident that led to defendant's suspension from group treatment in 1999.
Zito testified as to defendant's own recounting of the incident that
involved victim contact with "Tina." Defendant acknowledged in group that
he had encountered Tina at her place of employment where he was having
lunch. Though he had recognized Tina, he had failed to observe the group's
protocol which would have required "getting up and leaving immediately."
Instead, defendant chose to remain for a period of between five and ten
minutes. The court noted that he had been suspended from treatment as a
result of this incident. The court also noted another more recent incident
where defendant had failed to remove himself from the company of his minor
daughter after realizing that she was not chaperoned as required by group
rules. According to the court's findings, defendant sat next to his
daughter in a church pew for approximately thirty minutes during a service
before noticing that the approved supervisor, her mother, was not present.
Aside from expressing doubts about the credibility of defendant's claim not
to have realized that the chaperone was not present, the court noted that
defendant also re-engaged his daughter in conversation after the service
even though he knew that the chaperone was absent at that point. Though
this incident did not result in suspension, it did lead Zito to increase
his supervision of defendant.
¶ 12. From these findings, the court concluded that a
person who was in the group as long as defendant, and who had been
reprimanded for the contact violations described above, should have known
that further similar conduct was a basis for termination from the group.
Moreover, the findings delineate the group's no-contact policies. As the
prior incidents demonstrated to defendant, a no-contact policy violation
can occur even when the initial contact was accidental or inadvertent.
Once defendant recognized his victim, or realized that he was initiating
contact with a minor without required supervision, defendant had the
responsibility to remove himself from the situation without delay. Thus,
Zito did not punish defendant for the aspects of unapproved contact that
were beyond his control; Zito sanctioned defendant only when defendant
intentionally failed to avoid unapproved contact after realizing that it
had been initiated. Such a policy respects defendant's due process rights
as outlined in Benson, 172 Vt. at 4-5, 769 A.2d at 1295, and echoed in
Danaher, 174 Vt. at 593-94, 819 A.2d at 694-95.
¶ 13. Turning to the conduct that finally precipitated defendant's
termination from treatment, we affirm the conclusions of Zito and the trial
court that the Price Chopper incident was another in defendant's pattern of
willful violations of the group's prohibition on victim contact. The
court's conclusion relies on its specific finding that defendant was not
credible when he claimed that he did not recognize J.N. while he remained
behind her in line at the Price Chopper. Defendant had been married to
J.N.'s mother and had lived in the home where J.N. would frequently stay
with her mother. In the years after his separation from J.N.'s mother,
defendant had been to her home and had seen pictures of J.N. in the home,
including one from her sophomore year that hangs prominently over the
fireplace. The court also noted undisputed testimony that defendant had
seen J.N. at her workplace when she was fourteen. Defendant made eye
contact with J.N. in the Price Chopper parking lot and ended up directly
behind her at a distance of about three feet in the line at the customer
service desk. J.N. could see his face in the security monitor over the
desk. While both defendant and J.N. were in line, J.N.'s friend had called
out to her and greeted her by her first name. These findings support the
court's conclusion that defendant's claim that he did not recognize J.N. at
the Price Chopper was not credible.
¶ 14. Moreover, most striking to the court was the fact that, after
his arrest, defendant made an entry in his group "contact log" recounting
the Price Chopper incident and describing J.N. in "specific" detail, noting
her relative height, hair styling, and that she was wearing sunglasses on
her head. Nonetheless, defendant claims not to have recognized her.
Defendant asserted that his recollection came from information given to him
by the police on the day of arrest, and from having read J.N.'s statement
to the police. The court rejected this claim because defendant's contact
log contained more detail than was provided by both of the sources
defendant allegedly relied on.
¶ 15. Defendant does not dispute this finding on credibility, but
argues that it is no substitute for an express finding on defendant's
intent. The main problem with defendant's argument is that it ignores a
key statement made by the court moments after discounting defendant's
credibility as it pertained to his version of the events at the Price
Chopper. The court stated that it was "not persuaded that the conduct
resulting in his termination from group was not willful, or the result of
factors beyond his control." (Emphasis added). As we have long
recognized, the words "willful" and "intentional" are generally synonyms in
the criminal law. State v. Parenteau, 153 Vt. 123, 125 26, 569 A.2d 477,
479 (1989). For example, in State v. Penn, we approved of a jury
instruction that defined willfully as "purposefully and intentionally, and
not by accident, mistake or inadvertence." 2003 VT 110, ¶ 9, 176 Vt.
565, 845 A.2d 313 (mem.) (quotations omitted). Thus, the trial court did
conclude that defendant engaged in willful conduct, and thereby foreclosed
defendant's claim that his contact with his victim at the Price Chopper was
accidental or unintentional.
¶ 16. The trial court's conclusion is well supported by the
findings. As discussed, the group's no-contact policy extends beyond those
situations where a group member goes to a certain place at a certain time
with the specific intent to contact his victim. It also embraces those
encounters that are initially accidental or inadvertent, but that become
intentional once defendant realizes that he is in the presence of his
victim, but fails to timely remove himself from the victim's vicinity. The
trial court found that defendant continued to stand directly behind J.N. in
the customer service line even though he knew that she was there and that
he had an obligation to leave after recognizing her. The court further
found that he waited there until she finished her business and was so close
to her that he had to move out of the way so that she could pass. These
findings fully support the court's conclusion that defendant intended to
violate the group's prohibition on victim contact. As we noted in Danaher,
this Court may presume that the trial court "properly inferred essential
facts from its factual findings." 174 Vt. at 593, 819 A.2d at 694. This
includes mixed questions like those surrounding intent, because intent is
almost always inferred from subsidiary facts. Id. at 596, 819 A.2d at 697
(Dooley, J., dissenting).
¶ 17. The court's conclusion is not weakened by the credible
evidence that defendant had an innocent purpose for being at the Price
Chopper at the time, and that defendant had no reason to expect that his
victim would also be there. In this case, evidence that goes to
defendant's mental state prior to the point at which he found himself in
the presence of his victim is substantially less important than evidence of
defendant's reaction to the situation.
¶ 18. The trial court's review of defendant's history in the group
confirms its conclusion that, given how long defendant had been in the
group, he should have had more success in abiding by group rules
prohibiting victim contact. Though defendant had shown some progress, that
progress was marked by "fits and starts." Defendant's history of failing
to abide by the group's no-contact guidelines, only some of which has been
recounted here, retarded and often derailed defendant's treatment. As a
result of this chronic failure to respect a group policy aimed at
minimizing risk factors for recidivism, the trial court properly concluded
that defendant has not participated satisfactorily in the group. The trial
court reached this conclusion after showing proper sensitivity for
defendant's constitutional rights. Therefore, the violation must be
upheld. See Masse, 164 Vt. at 632, 674 A.2d at 1256 (upholding probation
violation based on trial court's conclusion that defendant had not
progressed satisfactorily in sex offender treatment).
Affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Paul L. Reiber, Associate Justice
_______________________________________
Frederic W. Allen, Chief Justice (Ret.),
Specially Assigned
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