State v. Galanes

• Citation: 2015 VT 80,124 A.3d 800
• Decision Date: 12 June 2015
• Docket Number: No. 14–351.,14–351.
• Parties: STATE of Vermont v. John GALANES.
• Court: United States State Supreme Court of Vermont

124 A.3d 800

2015 VT 80

STATE of Vermont

v.John GALANES.

No. 14–351.

Supreme Court of Vermont.

June 12, 2015.

Tracy Kelly Shriver, Windham County State's Attorney, David W. Gartenstein, Deputy State's Attorney, and Cristina Mansfield, Legal Intern, Brattleboro, for Plaintiff–Appellee.

James A. Valenteand Thomas W. Costelloof Costello, Valente & Gentry, P.C., Brattleboro, for Defendant–Appellant.

Opinion

DOOLEY, J.

¶ 1. Defendant appeals an order of the Windham Superior Court¹concluding that he violated a condition of his probation requiring him to notify his probation officer if he is planning to begin a sexual relationship. We reverse.

¶ 2. On October 29, 2009, defendant was convicted of several felony and misdemeanor offenses and placed on probation. In August 2013, after two separate probation violations in 2010 and 2013, defendant was placed on stricter conditions regarding sexual relationships. Included in defendant's list of conditions was Condition 45, which states:

You must inform your [probation officer] of the name and contact information of any person with whom you are planning to have a date or with whom you are planning to begin a dating, sexual or romantic relationship, prior to the date or beginning of the relationship.²

¶ 3. In March 2014, defendant was given a polygraph test in connection with the terms of his probation. According to the testimony of the polygraph examiner, when defendant was asked if he had engaged in any sexual contact since his last polygraph test, which was administered in October 2013, he admitted to having sexual contact on three separate occasions with the woman who cleans his home.

¶ 4. In April 2014, defendant met with his probation officer to discuss his relationship with his housekeeper. He admitted to her that “he had engaged in a sexual relationship with the woman in the six months between the October 1, 2013 polygraph and the March 31, 2014 polygraph.” In May 2014, the State filed a violation of probation complaint alleging a violation of Condition 45.³

¶ 5. On September 3, 2014, the trial court held a merits hearing. At trial, defendant and his housekeeper testified that they have known each other for four years and have been close friends for the past three years. He testified that one incident of sexual intercourse occurred after the more stringent condition went into effect and that any other incident took place before the new condition was imposed. The housekeeper testified to the recent incident and also stated that there had been one other incident but could not recall if it had occurred before or after the new condition took effect. She added that “it could have been a couple of times, but it was a long time ago.”

¶ 6. The testimony of defendant and his housekeeper disclosed that, at the time of the recent sexual encounter, the housekeeper did not know that defendant was at home and in the shower. Defendant came out of the shower in a towel while the housekeeper was in the bedroom folding laundry. At that point, the two had sex. The housekeeper testified that there was no planning on the part of either her or defendant. Following the merits hearing, the court found that defendant violated Condition 45, stating:

It was clearly intended and the Court believes it does communicate that [defendant] was not to have sex with people without notifying his [probation officer] in advance. And he had sex with [his housekeeper]. And although it may not have been planned all of the circumstances surrounding it ... strengthens the evidence that [this is] the kind of thing that [defendant] should have anticipated happening, in light of the fact that they've had sex before. She was in his house regularly, they had a close and comfortable relationship with one another. It would have been much, much, much smarter for him to notify [his probation officer].... But that didn't happen so the risk was not avoided, and he had sex without permission, again, after condition 45 was imposed. That was a violation.⁴

¶ 7. Although the trial court made no explicit findings on the number of incidents and when they occurred, its decision reflects that it was deciding the case based on the occurrence of only one sexual encounter after the date the probation condition was added. Consistent with the trial court's decision, the State bases its argument on appeal on this single incident and does not rely on multiple encounters. Therefore, we cannot decide this appeal, as the dissent suggests, post,¶ 28, on three sexual encounters in the few months between the October 2013 and March 2014 polygraph tests. Even if we could find in this Court that there were three separate encounters after the new condition was imposed, we have no evidence on the nature of these encounters or their timing and no argument in this appeal with respect to the significance of multiple encounters.

¶ 8. Defendant raises two issues on appeal: (1) that the plain language of Condition 45 does not expressly prohibit unplanned sexual contact; and (2) that the language of Condition 45 does not give defendant adequate notice that unplanned sexual contact is prohibited. Defendant challenges both the terms “sexual relationship” and “planning.” With respect to the term “sexual relationship,” defendant contends that the term “on its face appears to suggest more than a random, spontaneous sexual encounter.” With respect to the planning requirement, defendant argues that “[t]here was no evidence that [he] had ever ‘planned’ a sexual relationship with [his housekeeper],” as they both testified that “their sexual contact was spontaneous, and there is no suggestion that they discussed the matter beforehand, or even knew the other party was present until the contact occurred.”

¶ 9. The State argues that the condition requires that defendant notify and gain approval from his probation officer prior to having any voluntary sexual contact. The State argues that the single act of sexual intercourse between defendant and his housekeeper amounted to a sexual relationship, and that the relationship was planned—however briefly—when defendant voluntarily entered into the sexual activity. The trial court also adopted this position, although the court appears to have equated “anticipation” and “planning.” We agree with defendant that the language of Condition 45 did not give him fair notice that his conduct was prohibited.⁵

¶ 10. Our review of the trial court's determination that defendant violated a condition of his probation involves two steps. State v. Bostwick,2014 VT 97, ¶ 11, 197 Vt. 345, 103 A.3d 476. We first “examine the trial court's factual findings” and will “uphold them if supported by credible evidence.” Id.(quotation omitted). We next examine the trial court's legal conclusions, upholding them if they are “reasonably supported by the findings and [do] not constitute an erroneous interpretation of the law.” Id.(quotation omitted).

¶ 11. We frequently have held that a probationer must be “given fair notice as to what acts may constitute a violation of his probation.” State v. Peck,149 Vt. 617, 619, 547 A.2d 1329, 1331 (1988); see also State v. Blaise,2012 VT 2, ¶ 15, 191 Vt. 564, 38 A.3d 1167(mem.). We have enforced this standard multiple times with respect to probation conditions that prohibit “threatening behavior.” See State v. Sanville,2011 VT 34, ¶¶ 9–10, 189 Vt. 626, 22 A.3d 450(mem.) (holding that term “threatening behavior” in probation condition “did not afford defendant a reasonable opportunity to know what actions were prohibited, so that he might act accordingly” and concluding that to read defendant's action of “mouthing off” to his landlord as threatening was “to stretch its meaning impermissibly” (alterations omitted) (quotations omitted)); see also State v. Johnstone,2013 VT 57, ¶¶ 16–17, 194 Vt. 230, 75 A.3d 642(revisiting ambiguity of term “threatening behavior”).

¶ 12. It appears that Condition 45 was drafted specifically for defendant's circumstances. Condition 45 is not required by statute, nor expressly authorized by statute. See 28 V.S.A. § 252(b). Its language has not appeared in earlier decisions of this Court,⁶and there is no drafting history to provide extrinsic evidence of the intent of the drafters.

¶ 13. When interpreting the language of a probation condition, we look first to the plain and ordinary meaning of the terms, Bostwick,2014 VT 97, ¶¶ 20–21, 103 A.3d 476, frequently turning to dictionary definitions.⁷See State v. Danaher,174 Vt. 591, 593–94, 819 A.2d 691, 695 (2002)(mem.). We turn first to the term “sexual relationship.” Dictionary definitions of the term “relationship” vary but generally support an interpretation that suggests something more significant than a single encounter, such as “an emotional or other connection between people” or “a connection, association, or involvement.” Random House Unabridged Dictionary 1626 (2d ed.1993); see also Black's Law Dictionary, supra,at 1479 (defining “relationship” as “[a] situation in which two people spend time together or live together and have romantic or sexual feelings for each other”). Additionally, the State cites a law review article analyzing the use of the term “sexual relationship” in the context of domestic violence laws. B. Trimmer, Comment, A Sexual Relationship, Did We Have One? A Review of ‘Sexual Relationship’ Within the Context of Alaska's Domestic Violence Laws,24 Alaska L.Rev. 237 (2007). The article concludes that the question of whether “a course of sexual conduct [must] ensue for the sexual relations to graduate to a sexual relationship ... find[s] no answer in the dictionary.” Id.at 241.

¶ 14. The Trimmer article also posits a number of questions that must be answered in defining “sexual relationship,” including the type and duration of the activity. Important here is whether “a casual sexual encounter, such as a one-night stand, qualif[ies]” or whether “there [must] be consistent and recurring sexual activity over a period of time.” Id.at 240. The...