State v. Bailey

• Decision Date: 08 March 2010
• Docket Number: No. 08-353.,08-353.
• Citation: 992 A.2d 320,2010 VT 21
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Kenneth BAILEY, Sr.

992 A.2d 320

2010 VT 21

STATE of Vermont v. Kenneth BAILEY, Sr.

No. 08-353.

Supreme Court of Vermont.

March 8, 2010.

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

ENTRY ORDER

¶ 1. Defendant appeals the district court's order finding a violation of one of his probation conditions, as well as the administrative judge's denial of his motion to disqualify the trial judge. We affirm.

¶ 2. In May 2004, defendant pled guilty to one count of sexual assault and one count of domestic assault. The victim of his sexual assault was defendant's stepdaughter, whom he victimized when she was a child in his household. Pursuant to the plea agreement which suspended most of his sentence, defendant was subject to a number of special probation conditions, including one that he "not initiate or maintain contact with or reside with any children under the age of 18 years." In September 2008, while defendant was out on probation, the State filed a complaint and supporting affidavit alleging that defendant had violated the above-cited condition by engaging in contact with underage family members at a motel where his son and family were living. At the probation-violation hearing, witnesses for the State testified that on a number of occasions defendant had come to the motel, sat in front of the motel room where his son's family was living, and mingled with family members, including four granddaughters under the age of eighteen. Based on this evidence, the district court found a probation violation and revoked defendant's probation.

¶ 3. On appeal, defendant argues, through counsel, that (1) the court erroneously applied the above-cited probation condition to prohibit defendant's mere proximity to children in a public place; (2) the court's finding that defendant "freely mingled" with underage family members fails to support its conclusion that he violated the condition; and (3) the trial judge violated defendant's due process rights by not disqualifying himself from the probation-violation proceeding because of comments he had made during the original sentencing hearing. Defendant also argues in a supplemental pro se brief that the district court lacked jurisdiction to revoke his probation due to his timely appeal of the court's prior decision on his motion to modify the probation conditions.

¶ 4. Defendant first argues that the district court's finding of a probation violation in this case violates State v. Rivers, wherein we declined to find a probation violation based only upon the defendant's "mere proximity" to members of a generally prohibited class while in a public place. 2005 VT 65, ¶ 1, 178 Vt. 180, 878 A.2d 1070. We find this argument unavailing in that Rivers is readily distinguishable from the instant case. In Rivers, the defendant was prohibited from "having `contact' with children under the age of sixteen." Id. We held that such a no-contact provision was unduly restrictive when applied to prohibit the defendant's "mere proximity" to any member of a generally prohibited class of persons in a public place; accordingly, we reversed the trial court's finding of a probation violation based upon the defendant having been within close proximity of children at a state fair. Id. ¶¶ 1, 9. We concluded that a broad rule construing such a condition to prohibit "nothing more than incidental proximity-contact in a public place with numerous, unspecified individuals who are members of an ubiquitous class" would prevent a probationer from frequenting "grocery stores, movie theaters, libraries, fast-food restaurants, parks, or even downtown streets," which would severely restrict the probationer's liberty while doing little to rehabilitate him or prevent the behavior that led to the no-contact condition. Id. ¶ 13.

¶ 5. The instant case, in contrast, does not involve incidental proximity-contact in a public place. The evidence demonstrated that on a number of occasions defendant visited his son's residence, where he knew young grandchildren would be, and visited in the yard in the midst of the children. The trial court also found that some of these visits lasted hours. The trial court found, as supported by eyewitnesses, that defendant freely mingled with the children. Defendant placed himself in direct contact with family members belonging to the prohibited class in front of their residence. That defendant's son and others realized that such contact was prohibited is borne out by their testimony — explicitly found not credible by the trial court — claiming that the children were kept isolated from defendant during these visits.

¶ 6. Much of defendant's arguments are based on his view that the trial court's use of the term "mingled" is akin to "mere proximity." Thus, defendant argues that this case is like Rivers because his behavior did not result in "anything more than `proximity contact.'" We believe that the term "mingle" means more than proximity contact; rather, as defined in Webster's New International Dictionary 1564 (2d ed. 1959), it means, "To associate or unite, as... persons by ties of relationship; to join in company." Therefore, defendant's conduct here plainly exceeded "mere proximity" to the prohibited class. See Rivers, 2005 VT 65, ¶ 1, 178 Vt. 180, 878 A.2d 1070.

¶ 7. Under these circumstances, Rivers is not controlling. For similar reasons, we reject defendant's argument that his actions could not be construed as violating the condition prohibiting him from initiating or maintaining contact with anyone in the prohibited class. By visiting his family at their home and staying for periods of up to two hours, during which time he mingled with underage family members, defendant plainly initiated and maintained contact with members of the prohibited class in violation of the probation condition.

¶ 8. Defendant also argues that the trial judge's refusal to disqualify himself from the probation-violation proceeding based on comments the judge had made at the original sentencing hearing violated his right to a fair trial. Again, we find this argument unavailing. At the original sentencing hearing, the judge accepted the parties' plea agreement, but expressed doubt about whether the agreed-upon sentence was long enough and warned defendant that if he did not abide by the probation conditions, the judge would see to it that he would serve as much of the remaining sentence as possible. Defendant argues that these comments demonstrate that the trial judge prejudged his case and particularly the sentencing decision once a violation was found. First of all, we note that, upon receiving defendant's motion to disqualify, the trial judge declined to recuse himself, instead passing the motion onto the administrative judge, who denied the motion. Here, on appeal, defendant does not argue that the administrative judge abused her discretion in denying the motion, even though we have stated that "the question of recusal hinges on the administrative judge's exercise of discretion," and that this Court will disturb the administrative judge's decision only if there is no reasonable basis for the decision. Ball v. Melsur Corp., 161 Vt. 35, 40, 633 A.2d 705, 710 (1993). In this case, while the trial judge's comments could have been better phrased, they appear to be a warning to defendant to abide by his probation conditions. We cannot conclude that the administrative judge abused her discretion by not presuming bias based on these comments. See id. at 39, 633 A.2d 705, 622 A.2d at 709 (stating that judge subject to disqualification motion is accorded presumption of honesty and integrity).

¶ 9. Finally, in a supplemental pro se brief, defendant argues that the district court did not have jurisdiction to find a probation violation while his appeal was pending from an earlier decision on a motion to amend his probation conditions. We find no merit to this argument. The fact that defendant was in the process of challenging a probation condition did not prevent the State from filing a complaint based on an alleged violation of the condition or deprive the court of jurisdiction to find a violation of such a condition.

Affirmed.

JOHNSON, J., dissents and files opinion.

JOHNSON, J., dissenting.

¶ 10. Ignoring the spirit and purpose of our holding in State v. Rivers, the majority has employed an elastic definition of contact to fit the facts of this case. Because I cannot agree that the probation condition in effect clearly prohibited defendant's "mingling" with children under the age of eighteen in a public yard, I respectfully dissent.

¶ 11. Defendant was charged with domestic assault and sexual assault. Pursuant to a plea agreement, the majority of defendant's sentence was suspended, subject to certain conditions of probation. One of these conditions provided:

33. Defendant shall not initiate or maintain contact with or reside with any children under the age of 18.

¶ 12. In September 2008, the State filed a complaint alleging that defendant had violated the above probation condition. The complaint included an affidavit signed by an officer stating that defendant had been observed at the motel where his son and son's family reside "sitting in front of defendant's son's unit on more than one occasion." The affidavit also stated that minor children had been observed "congregating directly in that area with defendant present including a young infant and teen-aged minors." During the probation violation hearing, the owner of the motel testified that defendant's two sons lived at the motel along with their families, including a number of grandchildren ranging in age from a few months to eighteen years. The owner testified that defendant frequently visited his sons and their families and that the owner had observed defendant sitting in front of his son's room and that various family members, including the grandchildren, would "form a little circle" and "socialize," sometimes for hours at a time. The owner's son also...