State v. Danaher

• Decision Date: 20 November 2002
• Docket Number: No. 01-469.,01-469.
• Citation: 819 A.2d 691
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Martin M. DANAHER.

819 A.2d 691

STATE of Vermont v. Martin M. DANAHER.

No. 01-469.

Supreme Court of Vermont.

November 20, 2002.

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

ENTRY ORDER

¶ 1 Defendant Martin M. Danaher appeals the trial court's finding that he violated the "no contact" condition of his probation. On appeal, defendant argues that the court erred in concluding that he violated the "no contact" probation condition by being in physical proximity to the victim and that he was not provided fair notice that such actions constituted "contact." We affirm.

¶ 2 On October 11, 2000, defendant was charged with one felony count of lewd and lascivious conduct with a child, G.D., and two counts of prohibited acts with the same victim. On January 31, 2001, pursuant to a plea agreement, he pled no contest to the charge of lewd and lascivious conduct and to one count of prohibited acts. In exchange for his plea, defendant was placed on probation and received a deferred sentence. Both the probation and the deferred sentence included the condition that defendant have "[n]o contact with G.D. or her family without their prior consent and prior approval of the P[robation] O[fficer]." Further, defendant was required to reside outside of his home and not have overnight visits there until his probation officer and sex offender counselor approved. Defendant could, however, be at his home during the day, but if his children were present, his wife was to supervise.

¶ 3 Defendant's probation officer testified that on February 28, 2001, she met with defendant to review his conditions of probation and explain what was expected of him. She also testified that while discussing the terms of the "no contact" provision they discussed the fact that defendant lived up the hill from a residence frequented by G.D. The probation officer testified that she told defendant "he's not to have any contact with [G.D.]. That he shouldn't be down there when [G.D.] is down there."

¶ 4 At all times pertinent to this case, G.D. lived on Kelly Road in Underhill. One of her close friends, Kaitlyn Corbett, lived with her family on Russin Road, a small, private residential road. Defendant also lived on Russin Road. Although there is no road connecting Kelly Road with Russin Road, a path connects the two.

¶ 5 On May 14, 2001, G.D. and Kaitlyn drove an ATV from the former's home to the latter's home. As they approached the Corbetts' residence, they saw defendant on Russin Road feeding his horse. Defendant was also able to observe the two girls. At that time, defendant was boarding his horse on the Corbetts' property.

¶ 6 After G.D. and Kaitlyn arrived at the Corbetts' home, defendant came toward them, apparently to put his horse in the Corbetts' pasture, which was located near the Corbetts' barn. As he approached, G.D. brought one of the Corbetts' dogs into the Corbetts' house to prevent it from scaring the horse. She then returned to do the same with another dog. When defendant opened the gate to the pasture, Kaitlyn's horse exited. As the girls attempted to secure Kaitlyn's horse, defendant remained within proximity to the girls and watched. He offered to help, but Kaitlyn declined his offer. Though Kaitlyn asked defendant to leave, he did not do so.¹ Defendant remained in proximity to G.D. for approximately fifteen minutes, following her with both his eyes and body posture. At one point defendant was no more than ten feet from G.D. Eventually, defendant left.

¶ 7 The following day, May 15, G.D. was waiting for the school bus with Kaitlyn at a bus stop located at the bottom of Russin Road. According to G.D.'s testimony, defendant saw her as he drove up, stopped, then called to his own daughters who were also waiting at the bus stop. He rolled down his window and kissed both of his daughters. He stared at G.D. during this event, which lasted approximately four minutes. No evidence was presented regarding the physical distance between defendant and G.D.

¶ 8 Three other incidents involved defendant staring at G.D. One was brief and involved defendant pulling onto Russin Road, seeing G.D. at the Corbett residence, and slowing down and staring at G.D. as he drove past. The other lasted over an hour and involved defendant continually staring at G.D. while she was riding her horse. On a third occasion, defendant and his wife were walking their horses down Russin Road. G.D. and others were at the Corbett residence helping a veterinarian treat one of the Corbetts' horses. When defendant and his wife came within fifty feet of the group, they stopped briefly, then turned and went back toward their own home. Defendant's wife testified that as soon as she saw G.D. she told defendant, "She's here. We need to turn around and go back home." Defendant, according to his wife, agreed. When asked why she made that statement to her husband, she testified "he is not allowed to have contact with her." The trial court found that while these three instances did not constitute contact, they provided circumstantial evidence from which it could be inferred that the two May incidents were not inadvertent.

¶ 9 The trial court found that the defendant had violated the "no contact" condition of both his probation and the deferred sentence warrant. It directed the court clerk to set a time for sentencing. Defendant appeals the trial court's decision to this Court.

¶ 10 The first claim defendant makes on appeal is that neither of the two events relied upon by the court to revoke his probation amounted to "contact" in violation of the "no contact" provision of his probation. Findings of fact fairly and reasonably supported by any credible evidence must stand. State v. Sanborn, 155 Vt. 430, 436, 584 A.2d 1148, 1152 (1990). This Court will uphold the trial court's legal conclusions if reasonably supported by its factual findings. Id.

¶ 11 As described in the trial court's findings, the first probation violation the court relied upon to revoke defendant's probation took place on May 14. Defendant saw G.D. and Kaitlyn ride an ATV to Kaitlyn's home. Despite the probation officer's instruction not to "be down there [at Kaitlyn's residence] when [G.D.] is down there," defendant placed himself in physical proximity to G.D. and remained there for approximately fifteen minutes, even after Kaitlyn had asked him to leave. This reasonably supports the trial court's conclusion that defendant intentionally placed himself in physical proximity to G.D. in violation of the "no contact" condition of his probation.

¶ 12 The court further found that on May 15, when defendant placed himself in proximity to G.D. at the bus stop and stared at her, he intentionally violated the "no contact" provision of his probation. The court opined that to avoid violating this provision he should have driven by the bus stop without stopping near G.D. On appeal, defendant claims that since there was no evidence or testimony regarding his distance from G.D. during this event, the court could not infer that he was close enough to be within "proximity" to her. This Court may presume that the lower court properly inferred essential facts from its factual findings. Plant v. Ahlberg, 104 Vt. 16, 19, 156 A. 535, 536 (1931). Both G.D. and defendant's daughters were waiting at the same bus stop. There is no reason the court could not properly infer that by coming near his daughters at their bus stop while he knew G.D. was also present, defendant purposely put himself within physical proximity to G.D. See State v. J.T., 294 N.J.Super. 540, 683 A.2d 1166 (App.Div.1996) (using totality of circumstances to draw inferences is an acceptable practice for a trial court).

¶ 13 Defendant also claims that he was not given fair notice of what constituted "contact" for the purposes of the "no contact" provision of his probation. "Due process requires that the defendant receive fair notice as to what acts may constitute a violation of his probation, thereby subjecting him to loss of liberty." State v. Gleason, 154 Vt. 205, 216, 576 A.2d 1246, 1252 (1990) (internal quotations omitted). When a violation of a condition would not by itself amount to a criminal act, due process mandates actual notice. Mace v. Amestoy, 765 F.Supp. 847, 849 (D.Vt.1991). "The instructions and directions given to a defendant by a probation officer or the court can also serve to provide fair notice." Gleason, 154 Vt. at 216, 576 A.2d at 1252.

¶ 14 We will not disturb the trial court's finding regarding notice if the record contains any credible evidence that fairly and reasonably demonstrates that defendant received fair and actual notice. See id. at 217, 576 A.2d at 1253. Defendant's probation officer testified that she met with defendant to review his probation conditions and explain what was expected of him. With regard to the "no contact" provision, the probation officer instructed defendant that "he's not to have any contact with [G.D.]," and when G.D. was at the Corbetts' home, he should not be. Despite this instruction, defendant intentionally placed himself within proximity to G.D. on both May 14 and May 15, 2001.

¶ 15 The trial court reasoned that defendant was put on fair notice of what constituted contact because "contact" is an ordinary term, and it was used in accordance with its everyday meaning. On appeal, defendant argues that the court used only one of many definitions of "contact" available in other dictionaries. He further argues that these other definitions do not contain the idea of "proximity," which was integral in the court's conclusion. The existence of multiple definitions of a common term does not render that term ambiguous or vague.² Douglas v. State, 130 Md.App. 666, 747 A.2d 752, 757 (Ct.Spec.App.2000). Expecting mathematical certainty of language is unreasonable. State v. Schmitz, 238 Wis.2d 448, 617 N.W.2d 908 (Ct.App.2000) (internal citation omitted). It is not unreasonable for the trial court to expect a person to...