State v. Malshuk, 2003-243

• Decision Date: 09 June 2004
• Docket Number: No. 2003-243,2003-243
• Citation: 857 A.2d 282
• Parties: State of Vermont v. Dennis Malshuk, II
• Court: Vermont Supreme Court

857 A.2d 282

State of Vermont v. Dennis Malshuk, II

No. 2003-243, January Term, 2004

Supreme Court of Vermont

June 9, 2004

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

¶ 1 Defendant appeals from his conviction for violating an abuse prevention order by following his ex-girlfriend. Defendant asserts that the Orleans District Court erred by (1) violating "the law of the case" by changing its definition of "following" from the first trial which resulted in a hung jury, (2) instructing the jury that "following" included consciously placing oneself in physical proximity of another, (3) denying a motion of acquittal because of insufficient evidence to support the verdict, and (4) excluding evidence of victim's angry outburst at the defendant. We affirm.

¶ 2 The issues presented in this appeal arose from an encounter in Newport between defendant and his ex-girlfriend, Lori Libbey, who had previously obtained an abuse prevention order against defendant, prohibiting him from stalking, following, or coming within 100 feet of her. On the early evening of May 14, 2002, Libbey was picking up her children from day care, when defendant's current girlfriend, Donna Grondin, drove by in defendant's truck. Defendant was a passenger in the vehicle. After taking several minutes to get the children settled in her vehicle, Libbey drove to the Main Street intersection and found that defendant's truck was there. As Libbey pulled up behind the truck, the truck drove off, with defendant staring out the back window at Libbey.

¶ 3 Libbey stopped at her brother's Newport residence to seek his advice. While she was speaking with her brother outside of his house, defendant and Donna Grondin drove by several times. Libbey's brother advised her to drive home and to call the police if necessary. As she drove home, Libbey saw defendant's truck drive up behind her. She turned onto Route 5, and then pulled off at a rest area to let defendant pass. After waiting for a minute or two, Libbey pulled on to the highway and drove slowly to avoid catching defendant. Nevertheless, she soon came up behind defendant's vehicle, and while following behind him, defendant threw a beer bottle out of the window.

¶ 4 Libbey was stopped by a police officer after Grondin called to report that Libbey was driving with a suspended license. The police officer who responded to the call found Libbey upset and crying. He verified that her license was valid and went on to question defendant, whom he found buying beer at a local store.

¶ 5 Donna Grondin testified that she and defendant were running errands while these events were transpiring, including looking for defendant's grandmother around Newport, buying meat scraps for their dogs, and stopping at a store to make a payment on defendant's account. Grondin also testified that defendant threw the beer bottle out of the window because they often throw bottles to a man who collects them from the side of the road. Grondin further explained that defendant and Libbey were engaged in a custody battle over their child, and that the guardian ad litem had instructed them to call the authorities if they saw Libbey operating without a license. Grondin testified that she had telephoned the authorities from a cell phone to report Libbey because she and defendant believed that Libbey did not have a valid driver's license. Grondin made two or three calls, reporting Libbey's current location at each respective time.

¶ 6 Defendant was charged with violation of an abuse prevention order, second offense. 13 V.S.A. § 1030(b). In the first trial, the jury was instructed that "following" meant "to go after, to proceed after or to come after, to pursue in an effort to overtake." The trial resulted in a hung jury. At the second trial, upon the State's request, the judge altered the instruction to add that following could also mean, in addition to the previous definition, "consciously maintain physical proximity nearness with another person over a period of time or distance . . . ." The jury found defendant guilty. Defendant moved for acquittal alleging first, that the trial court erred in its definition of "following," and second, that the verdict was not supported by sufficient evidence. The trial court denied the motion, and this appeal followed.

¶ 7 Defendant first claims that the trial court erred in changing the definition of "follow" from the first trial to the second, and in denying the motion for acquittal to correct that error. Defendant argues that this change violated the "law of the case." Because defendant failed to object to the jury instruction, this issue has not been preserved for appeal. See State v. Dunbar, 172 Vt. 557, 559, 772 A.2d 533, 536 (2001) (mem.); State v. Koch, 171 Vt. 515, 517-18, 760 A.2d 505, 507 (2000) (mem.). In any event, the "law of the case" doctrine is a discretionary rule of practice, not a rule of law, and "in a proper case," the trial court may depart from the doctrine. Morrisseau v. Fayette, 164 Vt. 358, 364, 670 A.2d 820, 824 (1995).

¶ 8 Defendant next claims that the trial court erred in instructing the jury that the legal definition of "following" included placing oneself in physical proximity of another, and that such definition renders the abuse prevention order's additional prohibitions superfluous. The abuse prevention order states, in pertinent part, "[d]efendant shall not follow or stalk;" or "place himself within 100 feet" of Libbey. Defendant argues that the definition given for following renders the other two prohibitions superfluous because it is so broad that it encompasses stalking and entering the 100-foot zone.

¶ 9 Because defendant failed to object to the instructions at the proper time, after the instructions were given, we will review the claims for plain error only. See State v. Tahair, 172 Vt. 101, 104-05, 772 A.2d 1079, 1082 (2001); State v. Carpenter, 170 Vt. 371, 374, 749 A.2d 1137, 1139 (2000). Jury instructions will be "viewed in their entirety and must be well balanced and fair." State v. Brooks, 163 Vt. 245, 250, 658 A.2d 22, 26 (1995). This Court will find plain error "only when the entire charge undermines our confidence in the verdict, and only in extraordinary cases." Id.

¶ 10 There was no plain error. Under the abuse prevention order, defendant was precluded from following, stalking, or entering a buffer zone of 100 feet of Libbey. The trial court incorporated part of the definition of following from the stalking statute noting that the definition reflected the Legislature's belief that following could occur from any direction, not only from behind. Thus, the definition does not render the other provisions superfluous because one could stalk another without following, as stalking is also defined as "[engaging] in a course of conduct which consists of . . . lying in wait or harassing, and . . . caus[ing] the person to fear for his or her physical safety or caus[ing] the person substantial emotional distress." 13 V.S.A. § 1061(1)(B). Similarly, it would be possible to follow someone without entering the buffer zone and to enter the buffer zone without following. For example, if defendant had stopped and approached within 100 feet of Libbey when she was at her brother's residence, defendant could have been charged with entering the buffer zone. Conversely, as in this case, defendant could be charged with following without entering the buffer zone. The trial court's definition of following did not render the prohibitions against stalking and entering the buffer zone superfluous.

¶ 11 Defendant next contends that the trial court erred in denying his motion for acquittal. Defendant argues that even if the definition of following is correct, the trial court erred in denying the motion for acquittal because the State did not produce sufficient evidence to support the verdict.

¶ 12 On review of a V.R.Cr.P. 29 motion for acquittal, we determine "whether the evidence, when viewed in the light most favorable to the State and...