State v. Rivers

2005 VT 65, 878 A.2d 1070, 178 Vt. 180, 2005 Vt. LEXIS 145
CourtSupreme Court of Vermont
DecidedJune 10, 2005
DocketNo. 04-076
StatusPublished
Cited by23 cases

This text of 2005 VT 65 (State v. Rivers) 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. Rivers, 2005 VT 65, 878 A.2d 1070, 178 Vt. 180, 2005 Vt. LEXIS 145 (Vt. 2005).

Opinion

Johnson, J.

¶ 1. Defendant, Pete Rivers, appeals the Franklin District Court’s order imposing his underlying prison sentence after concluding that he violated a probation condition that prohibited defendant from having “contact” with children under the age of sixteen without prior written approval from his probation officer. In reliance on State v. Danaher, 174 Vt. 591, 819 A.2d 691 (2002) (mem.), and State v. Leggett, 167 Vt. 438, 709 A.2d 491 (1997), the court held that “proximity is contained within the meaning of ‘contact,’ ” and thus, defendant violated his probation by placing himself “in close physical proximity to minors under 16 years of age” while standing near them in the lines for [182]*182rides at the Champlain Valley Fair. Aside from mere proximity in this public space, the evidence did not indicate that defendant physically touched, initiated or sought conversation with, or otherwise stalked any particular children. The court also found that defendant’s probation officer had warned defendant not to attend the fair without an approved supervisor lest she file a contact violation against him. Other than the general no-contact condition, defendant’s probation conditions do not contain a specific prohibition on going to public places like the fairgrounds. On appeal, defendant argues that the proximity-equals-contact rule cannot be fairly and practically extended to a case that neither involves contact with a specified individual as in Danaher, nor contact in a private location like the residence involved in Leggett. Defendant claims that an expansion of this rule beyond those contexts would unduly restrict his liberty, leaving him guessing as to what public places he could go to without being arrested for violating the no-contact condition. Defendant also concedes that the court could have modified his probation conditions to prohibit him from frequenting specific public places where children will be present in large numbers, but argues that his probation officer lacked the power to impose such a condition without approval from the court. We agree with defendant on both points, and therefore, reverse.

I.

¶ 2. Because the facts of this case, as summarized above, are relatively straightforward, we begin by examining the scope of the proximity-contact rule as we have applied it in the past. We examine Danaher first because, as the following discussion will demonstrate, the reach of the proximity-contact rule was not a point of contention on appeal in Leggett.

¶ 3. In Danaher, the court found probationer Martin Danaher in violation of a probation condition that required him to have “no contact with [his victim] or her family without their prior consent and prior approval of the Probation Officer.” 174 Vt. at 591, 819 A.2d at 692. The evidence against Danaher included testimony about a series of “contacts” Danaher had with his victim, some that resulted in the charged violation, and others that the trial court considered as circumstantial evidence in determining whether the charged contacts were intentional. Id. at 594, 819 A.2d at 695-96.

¶ 4. One of the contacts that led to the violation occurred at a property that Danaher knew his victim frequented because her close friend resided there. Danaher, who kept his horse at the friend’s property, [183]*183his victim, and the friend were all by the horse .pasture when the friend’s horse broke free. Danaher remained in close proximity to the girls as they tried to corral the horse. Danaher .offered to help the girls, but they declined. The friend specifically asked Danaher to leave, but he refused to do so, and remained within ten to fifteen feet of .the girls, following his victim with “his eyes and body posture.” Id. at 592, 819 A.2d at 693.

¶ 5. The second incident occurred the following day when Danaher drove to a bus stop used by his victim and also by his own daughters. The victim testified that Danaher saw her as he drove up, but stopped anyway. From his car, he called to his daughters who-came over to. see him. While lingering by the stop, Danaher stared at his victim for approximately four minutes. The court also considered other incidents where Danaher stared at his victim as he passed her in his car, or on one occasion for over an hour while she rode her horse.

¶ 6. On appeal, Danaher argued that including proximity within the definition of contact rendered the term ambiguous and vague. Id, at 593, 819 A.2d at 694. We rejected that argument, reasoning that proximity is within the ordinary meaning of contact as this Court and at least one other had previously held. Id. at 594,819 A.2d at 695. We also cited a dictionary definition of contact that encompassed both “immediate proximity” and “visual observation.” Id. at 593 n.2,819 A.2d at 695 n.2. In adopting this broad definition, we concluded that it best effectuated the purpose of a “no contact” order, which we identified as “protecting] the victim from future occurrences of the behavior which initially resulted in the order.” Id. at 594, 819 A.2d 695. The dissent recognized that the enforcement of the no-contact condition in the manner affirmed by the majority also served to prevent defendant from engaging in conduct that was undesirable and upsetting to the victim of the crime. Id. at 594, 819 A.2d at 696 (Dooley, J., dissenting); cf. Stanton v. Iowa Dist. Ct. for Polk Cty., 2001WL 98951, at *2 (Iowa Ct. App. 2001) (“The obvious purpose of a no contact order is to protect the victim of domestic abuse from harm or harassment.”) (unpublished disposition). While agreeing that probation conditions could and should have been drafted to serve this purpose, the dissent rejected the idea that a condition that prohibited only “contact” with the victim gave notice that other harassing behavior such as staring or. close physical presence was prohibited. Danaher, 174 Vt. at 594, 819 A.2d at 696 (Dooley, J., dissenting). Finally, the majority opinion concluded that, based on the evidence and inferences drawn therefrom, these [184]*184incidents were not inadvertent, but instead resulted from Danaher’s intentional conduct. Id.

¶ 7. Danaher also relied upon State v. Leggett. In that case, Leggett was charged with violating a probation condition that, like the condition at issue here, prohibited unapproved contact with children under the age of sixteen. We found support for a no-contact violation even though the evidence in Leggett did not reveal any communication or physical touching between Leggett and two underage girls who were present with him in a private residence on multiple occasions. Id. The question presented by Leggett’s appeal was not, however, whether proximity satisfied the definition of contact, but instead whether the trial court erred in allowing hearsay testimony about Leggett’s actions without first finding good cause to admit the hearsay testimony. Leggett, 167 Vt. at 439, 709 A.2d at 491. We concluded that there was sufficient direct evidence to find a contact violation even if the hearsay evidence had not been admitted, and went on to recount that evidence. Id. at 440, 709 A.2d at 492-93.

¶ 8.

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

Related

State v. Austin R. Burnett
2022 VT 30 (Supreme Court of Vermont, 2022)
State v. Darryl M. Galloway
2020 VT 29 (Supreme Court of Vermont, 2020)
State v. Donald Bouchard
2020 VT 10 (Supreme Court of Vermont, 2020)
State v. Owen Cornell
2016 VT 47 (Supreme Court of Vermont, 2016)
State v. Thomas Gauthier
2016 VT 37 (Supreme Court of Vermont, 2016)
State v. Billy Joe Putnam
2015 VT 113 (Supreme Court of Vermont, 2015)
State v. Scott Provost
2014 VT 86A (Supreme Court of Vermont, 2015)
State v. Pettitt
2014 VT 98 (Supreme Court of Vermont, 2014)
State v. Bostwick
2014 VT 97 (Supreme Court of Vermont, 2014)
State v. Cornell
2014 VT 82 (Supreme Court of Vermont, 2014)
State v. Stokes
2013 VT 63 (Supreme Court of Vermont, 2013)
State v. Sanville
2011 VT 34 (Supreme Court of Vermont, 2011)
State Of Iowa Vs. Ritchie Lee Lathrop
Supreme Court of Iowa, 2010
State v. Lathrop
781 N.W.2d 288 (Supreme Court of Iowa, 2010)
State v. Bailey
2010 VT 21 (Supreme Court of Vermont, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
2005 VT 65, 878 A.2d 1070, 178 Vt. 180, 2005 Vt. LEXIS 145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rivers-vt-2005.