State v. Blanchard, 19-320

Docket NºNo. 19-320
Citation256 A.3d 567
Case DateMarch 05, 2021
CourtUnited States State Supreme Court of Vermont

256 A.3d 567

STATE of Vermont

No. 19-320

Supreme Court of Vermont.

September Term, 2020

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, Dawn Matthews, Appellate Defender, and Anders Newbury, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.


256 A.3d 571

¶ 1. Defendant appeals his convictions following a jury trial for criminal threatening under 13 V.S.A. § 1702 and impeding a public officer under 13 V.S.A. § 3001(a). He argues that there was insufficient evidence to support either conviction and that the jury instructions on impeding an officer were impermissibly vague and overbroad and failed to guarantee unanimity. We affirm.

¶ 2. The evidence presented at trial, viewed in the light most favorable to the State, was as follows. On a dark, rainy night in April 2018, Officer Neily pulled over the car defendant was driving after observing it traveling toward him with its passenger-side headlight out. When Officer Neily requested defendant's driver's license, registration, and insurance, defendant asked why Officer Neily had stopped him. Officer Neily informed defendant that his headlight was out, and defendant thanked him and asked if Officer Neily suspected him of a crime. Officer Neily stated that defective equipment was a violation of the motor vehicle code. After some back and forth in which defendant asserted that there was no reason to stop him, defendant gave Officer Neily the requested documents. Upon reviewing the registration and insurance documents, Officer Neily noted that both were out-of-date, with the registration expiring in 2016. Officer Neily asked defendant if he could provide up-to-date documents. Defendant responded that he did not have to have registration or insurance and that it was his constitutional right to travel, and he asked to speak with Officer Neily's supervisor.

¶ 3. Officer Neily called his supervisor, Sergeant Molgano. Upon returning to his cruiser, Officer Neily confirmed that defendant's registration and insurance had expired. While Officer Neily was verifying the information, Sergeant Molgano arrived and began speaking with defendant, who was still in his car. After talking with defendant for nearly thirty-seven minutes, Sergeant Molgano returned to Officer Neily's vehicle, where the officers decided to inform defendant that they were going to ground his vehicle in the parking lot because of his defective equipment and outdated registration and insurance. Officer Neily returned to defendant's vehicle and told defendant that he was grounding the car in the parking lot where it was parked. Defendant argued with Officer Neily, asserting that he had a right to drive and stating, "I'm going to drive away." Officer Neily said if that happened, he would stop the car again and tow it, and defendant responded, "You're not going to tow my car, not without a fucking warrant, you aren't." At that point, Officer Neily said he would go ahead and tow the car. When Officer Neily returned to his vehicle, defendant got out of his car, standing with his back to the driver's-side door and his arms crossed.

¶ 4. When Officer Neily came back from his cruiser, he asked if defendant had a preference for who towed the car. Defendant stated multiple times that they could not tow his car without a warrant and insisted, "You ain't taking my fucking car." Defendant said, at least twice, "I'm going to defend myself." When Officer Neily again turned to walk back towards the police cruiser, defendant, while pointing to the back seat of his car, said, "I've got an

256 A.3d 572

AR-15 right fucking here. Do we need that?"

¶ 5. Sergeant Molgano immediately stepped forward and approached defendant, engaging him in conversation. He did so, as he testified, "to get close to [defendant] so that he would not have the ability to get back into his car to attempt to get an AR-15." Sergeant Molgano testified that defendant did not appear to be joking and that he believed he was in jeopardy. After several more minutes of Sergeant Molgano telling defendant that he could not drive the car and defendant responding that he could and that he had not committed a crime, defendant attempted to open the driver's-side door to his car. Sergeant Molgano pushed the door closed before defendant could get back in. In this time, two other officers arrived at the scene. Defendant again attempted to open the door; Sergeant Molgano pushed the door shut and placed defendant under arrest for impeding an officer.

¶ 6. Defendant was charged with impeding an officer under 13 V.S.A. § 3001, two counts of criminal threatening—one for threatening each officer—under 13 V.S.A. § 1702(a), simple assault on a law enforcement officer under 13 V.S.A. § 1023(a)(3) and § 1028, and aggravated disorderly conduct under 13 V.S.A. § 1026(a)(1). The State dismissed the charge for aggravated disorderly conduct prior to trial.

¶ 7. At trial, both Officer Neily and Sergeant Molgano testified, and the officers’ cruiser videos with audio of the entire interaction were admitted as evidence. After the close of evidence, defendant moved for judgment of acquittal under Vermont Rule of Criminal Procedure 29 based on insufficient evidence as to all charges. Specifically, defendant argued that he did not impede the officers from towing his vehicle or ensuring officer safety. As to the criminal threatening charges, defendant argued that there was insufficient evidence that the defendant's reference to his gun amounted to a criminal threat. The court denied defendant's motion. The jury found defendant guilty of impeding Officer Neily and criminally threatening Sergeant Molgano.

¶ 8. Defendant argues again on appeal that the evidence was insufficient to support the conviction for criminal threatening, and challenges the jury instructions and sufficiency of the evidence with respect to the impeding charge. We address these arguments in turn.

I. Criminal Threatening

¶ 9. Defendant argues that the evidence presented at trial was insufficient to support his conviction for criminal threatening. Specifically, defendant argues that his statements that he would defend himself and that he had an AR-15 in his vehicle do not rise to the level of "threatening" under the criminal threatening statute and were not constitutionally unprotected true threats. The State contends that defendant's words and actions constituted an "actual threat," and that defendant waived his constitutional argument by not raising it before the trial court. We reject the State's contention that defendant has not preserved the constitutional challenge because in this case the statutory and constitutional issues merge. On the merits, we conclude that there was sufficient evidence to support defendant's conviction for criminally threatening Sergeant Molgano.

¶ 10. Because of the structure of the criminal threatening statute, defendant's constitutional argument in this case is inextricable from his statutory argument. The criminal threatening statute provides, "A person shall not by words or conduct knowingly: (1) threaten another person; and (2) as a result of the threat, place the other person in reasonable apprehension

256 A.3d 573

of death or serious bodily injury." 13 V.S.A. § 1702(a). Section 1702 expressly excludes constitutionally protected activity from the definition of "[t]hreat" and "threaten." Id. § 1702(d)(2). The statute therefore can only punish constitutionally unprotected "true threats." See Hinkson v. Stevens, 2020 VT 69, ¶¶ 43-44, ––– Vt. ––––, 239 A.3d 212 (concluding that statute only prohibits "true threats" in part because definition of "course of conduct," which encompasses "threats," expressly excludes constitutionally protected activity); State v. Noll, 2018 VT 106, ¶¶ 28-29, 208 Vt. 474, 199 A.3d 1054 (same); cf. State v. Tracy, 2015 VT 111, ¶ 15, 200 Vt. 216, 130 A.3d 196 (analyzing "disorderly conduct by ‘abusive ... language’ " statute against "backdrop" of First Amendment case law from U.S. Supreme Court); State v. Read, 165 Vt. 141, 146, 680 A.2d 944, 947 (1996) ("[T]his Court is obligated to narrow and limit the statute [punishing speech] in light of the protections guaranteed by the United States and Vermont constitutions."). Thus, in determining whether defendant's words and actions violated the statute, we must consider whether they are constitutionally protected. For that reason, in this case, defendant's broad objection before the trial court is sufficient to preserve his constitutional arguments.

¶ 11. On the merits, we conclude that defendant's statements did not fall outside the scope of the criminal threatening statute, construed in light of the applicable constitutional limitations. In particular, we conclude that defendant's statements amounted to "true threats" subject to prosecution under 13 V.S.A. § 1702, that they were not protected political hyperbole, and that our conclusion on this point is consistent with the cases defendant cites.

¶ 12. While the First Amendment to the U.S. Constitution, applicable to the states through the Fourteenth Amendment, prohibits laws "abridging the freedom of speech,"...

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