State v. Danaher

819 A.2d 691, 174 Vt. 591, 2002 Vt. LEXIS 339
CourtSupreme Court of Vermont
DecidedNovember 20, 2002
Docket01-469
StatusPublished
Cited by28 cases

This text of 819 A.2d 691 (State v. Danaher) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Danaher, 819 A.2d 691, 174 Vt. 591, 2002 Vt. LEXIS 339 (Vt. 2002).

Opinions

¶ 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.

112 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 Probation] 0[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’ bam. As he [592]*592approached, 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.1 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 them 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 [593]*593there 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

BARGE v. CITY OF ENGLEWOOD
D. New Jersey, 2025
State v. Austin R. Burnett
2022 VT 30 (Supreme Court of Vermont, 2022)
State v. Michael Harwood
2020 VT 65 (Supreme Court of Vermont, 2020)
State v. Darryl M. Galloway
2020 VT 29 (Supreme Court of Vermont, 2020)
In re B&M Realty, LLC
2016 VT 114 (Supreme Court of Vermont, 2016)
State v. Thomas Gauthier
2016 VT 37 (Supreme Court of Vermont, 2016)
State v. Thomas Bryan
2016 VT 16 (Supreme Court of Vermont, 2016)
State v. Billy Joe Putnam
2015 VT 113 (Supreme Court of Vermont, 2015)
State v. Galanes
2015 VT 80 (Supreme Court of Vermont, 2015)
State v. Kyle Doyle
Supreme Court of Vermont, 2015
State v. Waters
2013 VT 109 (Supreme Court of Vermont, 2013)
Hacker, Anthony Wayne
389 S.W.3d 860 (Court of Criminal Appeals of Texas, 2013)
People v. Devorss
277 P.3d 829 (Colorado Court of Appeals, 2011)
State v. Todd Maddox, Sr.
Supreme Court of Vermont, 2011
State v. Bailey
2010 VT 21 (Supreme Court of Vermont, 2010)
State v. Rivers
2005 VT 65 (Supreme Court of Vermont, 2005)
State v. Coyle
2005 VT 58 (Supreme Court of Vermont, 2005)
State v. J.S.
817 A.2d 53 (Supreme Court of Vermont, 2002)
State v. Danaher
819 A.2d 691 (Supreme Court of Vermont, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
819 A.2d 691, 174 Vt. 591, 2002 Vt. LEXIS 339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-danaher-vt-2002.