Benson v. Muscari

• Decision Date: 02 February 2001
• Docket Number: No. 99-142.,99-142.
• Parties: Ellyn BENSON v. Vincent MUSCARI.
• Court: Vermont Supreme Court

769 A.2d 1291

Ellyn BENSON v. Vincent MUSCARI.

No. 99-142.

Supreme Court of Vermont.

February 2, 2001.

Sara Kagle and Geoffry F. Walsh, Vermont Legal Aid, Inc., Springfield, for Plaintiff-Appellee.

William E. Kraham, Brattleboro, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

MORSE, J.

Defendant Vincent Muscari appeals from a final relief-from-abuse order issued to plaintiff Ellyn Benson. Defendant challenges certain conditions of the order, claiming: (1) the 1000-foot buffer-zone restriction violated his constitutional rights and represented an abuse of discretion; (2) the firearms and deadly weapons restrictions were vague, overbroad, and unsupported by the evidence and findings; (3) it was error to include the minor child in the order; and (4) the findings were inadequate to support the five-year period of the order. We uphold all of the challenged conditions except for the restriction on possession of deadly weapons, which in the context of this case was vague and overbroad, and remand for reconsideration of that issue.

The final order for relief from abuse resulted from a violent incident in plaintiff's home. Although they had not lived together or had children, plaintiff and defendant had a sexual relationship for five years and, thus, were "household members" as defined in 15 V.S.A. § 1101(2). On the evening in question, defendant entered plaintiff's home without announcing his presence and encountered plaintiff in her second-floor bedroom with another man. Defendant then physically assaulted plaintiff, punching her in the face and dragging her by her arms down to the main floor. Defendant told her that she would pay for the rest of her life for her behavior. He destroyed much of the kitchen. A state trooper who arrived at the scene found plaintiff "covered in blood from head to toe" with blood "running off her in streams." At the hearing, plaintiff testified that defendant once told her that if she was ever with another man, he would kill both of them. She also testified that defendant had possessed firearms in the past, and was uncertain whether he still possessed them.

At the time of the hearing, plaintiff lived in Westminster with her nine-year-old daughter, who is not related to defendant. Plaintiff testified that she cleaned homes in the area, and worked in an egg-roll business in Putney. Her daughter attended school in Putney. Defendant resided in Brattleboro.

Based on the foregoing, the trial court found that plaintiff had been abused by defendant, and that she and her daughter were in immediate danger of further abuse. The court issued a relief from abuse order containing a number of terms, four of which are disputed here:

(1) Defendant was ordered not to "place himself within 1000 feet of Plaintiff individually."

(2) Defendant was ordered not to contact or harass plaintiff's child and not to place himself within 1000 feet of the child.

(3) Defendant was ordered "not to be in possession or control of any firearms or dangerous weapons — excepting restaurant cutlery — which shall not be in his possession off restaurant premises."

(4) The order provided that it would remain in effect for five years, until February 10, 2004.

Defendant first challenges the validity of the 1000-foot buffer zone on the grounds that it is impossible for him to comply with the restriction, and that it will subject him to criminal responsibility despite his inability to comply. He asserts that the order denies him due process of law, and violates his right to live in the community, to associate with others, and to travel. In making these arguments, defendant acknowledges that the Abuse Prevention Act specifically authorizes "restrictions prohibiting the defendant from coming within a fixed distance of the plaintiff, the children, the plaintiff's residence, or other designated locations where the plaintiff or children are likely to spend time." 15 V.S.A. § 1103(c)(1). He notes, however, that he lives in an area where plaintiff is likely to shop or visit, and asserts that he might inadvertently violate the 1000-foot limit if he fails to recognize her from that distance.

It is well documented that "stay away" provisions, including buffer zones of protection, implement important policy objectives underlying abuse prevention orders. They are specific and definite, minimizing interpretation issues. See generally C. Klein & L. Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 Hofstra L.Rev. 801, 922-23 (1993). They prohibit what otherwise may be viewed as inoffensive contact before it matures into further incidents of abuse. See id. of 922 (clear and forceful stay away orders "ensure that the beating which brought the petitioner to court to obtain the order is her last"); State v. Goyette, 166 Vt. 299, 302, 691 A.2d 1064, 1066 (1997) (order may "prohibit otherwise legitimate conduct to prevent future abuse"). And they provide the victim a measure of emotional security from fear of further contact with the abuser. See State v. Hauge, 547 N.W.2d 173, 176 (S.D. 1996) (one purpose of restraint on abuser's conduct is to preserve "the mental and emotional health of the vulnerable," which prevails over "other less compelling interests"). We conclude, therefore, that these important policy goals are sufficient to justify the incidental restrictions they may impose on defendant's freedom of travel and association. See Coyle v. Compton, 85 Hawai`i 197, 940 P.2d 404, 414 (Ct.App.1997) (freedom of movement is not absolute and may be restricted, without offending constitutional guarantees, by a specifically-tailored abuse prevention order).

Although there may be some risk of inadvertent violation of an order requiring defendant to stay 1000 feet from plaintiff, we cannot conclude that the condition denies defendant due process of law. His argument is based largely on the claim that he may be prosecuted, or held in criminal contempt, for inadvertent violation of the order because it is a strict liability crime under State v. Mott, 166 Vt. 188, 692 A.2d 360 (1997), and State v. Crown, 169 Vt. 547, 726 A.2d 493 (1999) (mem.). Defendant misreads these cases. In Mott, defendant argued that he could not be convicted for contacting his former wife by mail in violation of an abuse prevention order because he was unaware of the order and could not have intended to violate it. We held that intent to violate the order is not an element of the crime, and affirmed the conviction. 166 Vt. at 197, 692 A.2d at 366; see also State v. Crown, 169 Vt. at 549, 726 A.2d at 495; State v. Dann, 167 Vt. 119, 133, 702 A.2d 105, 114 (1997). In so holding, we concluded that the trial court had correctly instructed the jury that the State must show only that defendant intended to do the act that constituted the violation; the violation could not result from a mistake, an accident, or a misunderstanding. See Mott, 166 Vt. at 197, 692 A.2d at 365-66.

Under Mott, therefore, defendant could not be criminally convicted of violating the abuse prevention order unless the State proved that he intended to place himself within 1000 feet of plaintiff. Contrary to defendant's claim, he could not be convicted of an inadvertent violation of the order. Accordingly, we reject the argument that the order denied him due process of law.¹

Defendant also asserts that the court abused its discretion in imposing the 1000-foot buffer zone. The Abuse Prevention Act vests the trial court with broad discretion to craft "such orders as it deems necessary to protect the plaintiff, the children or both." 15 V.S.A. § 1103(c) (emphasis added). Such orders may include "prohibiting the defendant from coming within a fixed distance of the plaintiff [or] the children." Id. § 1103(c)(1). The dissenting Justice suggests that a smaller distance might eliminate the likelihood of inadvertent violations and prove more "effective." ___ Vt. at ___, 769 A.2d at 1301. As noted, however, defendant could not be convicted of an inadvertent violation. Furthermore, the judgment as to whether a 1000-foot buffer zone, or some greater or lesser distance, was necessary to provide plaintiff and her child with an adequate level of security was one that rested within the sound discretion of the trial court. The trial court, not this Court, was in the best position to determine the appropriate distance. See State v. Hagen, 151 Vt. 64, 65, 557 A.2d 493, 494 (1989) (finder of fact is best positioned to determine weight of evidence, credibility and demeanor of witnesses, and persuasive effect of testimony, and findings will not be set aside unless clearly erroneous). We may not second-guess the trial court's judgment merely because a smaller distance might, in our view, have been more effective.

Defendant also contends the evidence and findings were insufficient to support the buffer-zone and firearms limitations. Even without actually viewing the witnesses or hearing their testimony, one cannot review the record evidence in this case and fail to understand the trial court's conclusion that a substantial buffer zone was necessary to secure plaintiff's physical and emotional well-being. Plaintiff described in detail, albeit with some difficulty, the vicious attack and substantial injuries she suffered at the hands of defendant. The severity of the injuries was corroborated by the investigating officer and by photographs of plaintiff taken shortly after the incident. Plaintiff also testified that defendant had threatened to kill her if he saw her with other men. In addition, the officer conveyed a sense of defendant's utter lack of remorse or contrition, noting that during his interview with the officer he had twice stated "that he would come out smelling like a rose."

There was also testimony that plaintiff worked two jobs, and that one of them, cleaning homes, involved her traveling to numerous locations...