State v. Ellis

Citation979 A.2d 1023,2009 VT 74
Decision Date16 July 2009
Docket NumberNo. 07-493.,07-493.
PartiesSTATE of Vermont v. Kevin ELLIS.
CourtUnited States State Supreme Court of Vermont

Tracy Kelly Shriver, Windham County State's Attorney, and Ellen Kryger, Deputy State's Attorney, Brattleboro, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

DOOLEY, J.

¶ 1. Defendant Kevin Ellis appeals his conviction for stalking under 13 V.S.A. § 1062. Defendant alleges, among other claims of error, that: (1) there was insufficient evidence to sustain the guilty verdict; (2) the trial court erred in not requiring the jury to reach a unanimous guilty verdict on one theory of the crime; (3) the trial court erred in not deciding defendant's motion for judgment of acquittal at the close of the State's case; (4) defendant's activities were not within the statutory definition of "course of conduct" because they were constitutionally protected activities; (5) the stalking statute is unconstitutional because the requirement that such conduct "serve no legitimate purpose" is vague and overbroad; and (6) the statute is unconstitutionally vague as applied in this case because the State was not required to prove that defendant had the intent to cause a reasonable person substantial emotional distress. We agree that the evidence was insufficient to sustain the guilty verdict and reverse the judgment of conviction. We do not reach the other claims because there will be no retrial.

¶ 2. Based on the evidence presented, the trial court found the following facts, taken in the light most favorable to the State, and disregarding any modifying evidence. Defendant and the alleged victim, Sarah S.,1 attended the same high school and met while they both were sophomores. During their sophomore year, they had one class together. In their junior year, they had the same lunch period and shared a table together at lunchtime. The victim felt sorry for defendant, who did not have a lot of friends, and she was kind and friendly to him. During the spring of their junior year, defendant sent her an email revealing that he had a crush on her. She responded that she had a boyfriend and that there was "no chance" they could ever be more than friends. During their junior year, defendant began a practice of waiting for her outside most of her classes and at the end of the school day, trying to engage her in conversation. Defendant also gave her a few small gifts and continued to send her emails periodically. The victim included defendant on a few emails that she sent to a large group.

¶ 3. In June 2006, between their junior and senior years, defendant for the first time called the victim at her house one Saturday. During this conversation, defendant suggested that they get together some time in person. She did not reject this possibility. The next morning around 8 a.m. defendant called again. The victim was surprised and embarrassed by this call and told defendant that she could not talk then. After this call, her mother became aware of defendant's attentions and became concerned.

¶ 4. On June 26, defendant sent the victim an explanatory and apologetic email. She did not respond to this message. Defendant sent her another email on June 27 and again on June 28. She then responded, saying that she wanted to be friends but "you need to back off a little bit." Defendant responded with an expletive-filled angry email that questioned why she was punishing him, if she was trying to make him mad, why she was not interested in him, and how she could want to be friends but not actually see or talk to him. The victim was shocked and alarmed by this email and felt that defendant was angry with her. On June 30, defendant sent her an email in which he asked if she was mad at him or mad at his angry email, and asked that she give him a chance to be her friend again.

¶ 5. At some point near the time of the June 30 email, defendant approached the victim at a summer recreation program at the high school where she worked, and repeated his apologies. He asked if she would "do something" with him; she answered maybe. She cut the conversation short because she thought it was inappropriate for him to approach her at work and she was uncomfortable.

¶ 6. On July 19, the victim sent defendant an email in response to defendant's attempt in an earlier email to meet at a proposed date and time. She wrote that she was unavailable on the proposed date, stating that "it won't really work out," and ending the email with "sorry." By return email, defendant asked whether she was being sarcastic when she wrote that she was sorry that his suggested meeting date was not available. He then asked her to help him, and admitted that he was "hoping to coax a real response by backing [her] up into a corner." He proposed that they "make rules for each other," and said he was "only trying to make [her] a friend again."

¶ 7. At some point in their interactions over the summer, the victim requested that defendant never call her at home again. In response, defendant never called her again.

¶ 8. When classes began in the fall, defendant and the victim had two classes together. Defendant resumed waiting for the victim after classes and trying to engage her in conversation. Thereafter, at some date in September 2006, she told defendant that she did not want to even be friends and that she wanted nothing to do with him. Her friends became aware that defendant was paying her unwanted attention, and began escorting her between classes and to after-school activities. If defendant attempted to engage her, they would intervene in the conversation. She repeatedly told defendant that she did not want to talk to him, and asked him to leave her alone. Defendant continued to approach her between classes. At least on one occasion, defendant attempted to engage her in conversation during one of their shared classes. The teacher was struck by how odd this behavior was, and how uncomfortable the victim looked. He spoke to her about the incident after class, and reported it to the administration.

¶ 9. Defendant attended after-school sporting events where the victim was also a spectator and stood nearby. After one game, defendant approached her and her brother and requested a ride to his own car, which was parked in an adjacent lot. She refused; she was startled and alarmed by this conduct.

¶ 10. On October 15, 2006, the victim, her brother, and her mother were shopping at a supermarket in her hometown. As they drove into the parking lot, defendant drove out. He then turned his car around, turned back into the parking lot, and parked. He then began searching for something in his vehicle. She and her family completed their shopping and were standing in the checkout line when defendant entered the store and approached her brother. Defendant asked if he knew the time; her brother pointed to the clock on the wall. Defendant then asked if he could borrow his cell phone; her brother said no. Defendant then left the store. When the family returned home, her mother told her father what had happened.

¶ 11. The victim's father is the chief of police in her hometown. On October 16, he was assisting with traffic control near the high school and saw defendant. He approached defendant and told him not to contact his daughter or to harass her in any way.

¶ 12. The next day at school, defendant approached the victim in the school library, telling her that she did not have to induce her father to talk to him and that she could have asked him herself to leave her alone. She replied that she had been doing so for months but to no avail. Defendant sent her an email that day in which he said that he "just need[ed] a friend" and that he was "only asking for some closure now."

¶ 13. Later, defendant approached the victim between classes at school. She attempted to ignore him, and her boyfriend stepped between them, told defendant to back off, and pushed defendant. School authorities intervened, and both defendant and the boyfriend were interviewed by school staff. That same day, defendant tried to talk to the victim again during class. She ignored him.

¶ 14. That week the victim had her final game of the soccer season. As her father was getting out of the family car in the school's parking lot, he saw defendant standing close by and confronted him. He swore at defendant, and told him to keep away from his family and his daughter. Defendant said he was there to pick up his sneakers from inside the school. The family car was parked in such a location so that defendant was not required to pass it in order to gain entrance to the school. The victim was not present at this incident.

¶ 15. In the course of all this conduct, defendant never threatened the victim. His most offensive email contained a veiled threat of self-harm. There is no evidence that the victim feared physical violence or unlawful restraint from defendant.

¶ 16. After the incident in the school parking lot, the victim's father contacted the Vermont State Police and asked them to investigate defendant. Two state police officers arrested defendant and interviewed him at the state police barracks. At least part of the videotape of the interview was shown to the jury as part of the evidence in this case. In the interview, defendant represented that he would not initiate further contact with the victim.2 Nevertheless, defendant was charged on October 19 with misdemeanor intentional stalking under 13 V.S.A. § 1062 for his actions during the summer and fall of 2006.3 Both he and the victim were seventeen years of age when defendant was arrested and charged.

¶ 17. The term "stalk" is defined in 13 V.S.A. § 1061(1) and contains three elements, two of which are defined in the alternative. The first element is a "course of conduct which consists of following, lying in wait for, or...

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24 cases
  • State v. Vuley
    • United States
    • Vermont Supreme Court
    • June 4, 2013
    ...trial court did not err in denying the motion for a judgment of acquittal. We review de novo a motion for a judgment of acquittal. State v. Ellis, 2009 VT 74, ¶ 21, 186 Vt. 232, 979 A.2d 1023. The question is whether the State has produced evidence that could reasonably support a guilty ver......
  • State v. Dow
    • United States
    • Vermont Supreme Court
    • August 19, 2016
    ...assault with a deadly weapon and attempted simple assault. This Court reviews the denial of a motion for acquittal de novo. State v. Ellis, 2009 VT 74, ¶ 21, 186 Vt. 232, 979 A.2d 1023. In reviewing whether a motion for acquittal was properly granted, this Court considers "whether the evide......
  • State v. Vuley
    • United States
    • Vermont Supreme Court
    • February 8, 2013
    ...trial court did not err in denying the motion for a judgment of acquittal. We review de novo a motion for a judgment of acquittal. State v. Ellis, 2009 VT 74, ¶ 21, 186 Vt. 232, 979 A.2d 1023. The question is whether the State has produced evidence that could reasonably support a guilty ver......
  • State v. Noll, 17-146
    • United States
    • Vermont Supreme Court
    • October 12, 2018
    ...to a heightened fear of unlawful restraint or bodily injury on the part of a reasonable person in complainant's circumstances. See State v. Ellis, 2009 VT 74, ¶ 26, 186 Vt. 232, 979 A.2d 1023 ("We do not dispute that obsessive behavior, without threats or attempted acts of violence, can cau......
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