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State v. Amsden

Supreme Court of Vermont

July 12, 2013

State of Vermont
Michele Irene Amsden

On Appeal from Superior Court, Windham Unit, Criminal Division David Suntag, J.

Kerry A. McDonald-Cady, Windham County Deputy State’s Attorney, Brattleboro, for Plaintiff- Appellee.

Matthew F. Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.


¶ 1. Defendant appeals convictions on charges of disorderly conduct and cruelty to a child stemming from her four-year-old son’s exposure to dangerous and unsanitary conditions under a bridge and defendant’s disruptive behavior inside a hospital. We affirm both convictions as legally sound and supported by the evidence.

¶ 2. The facts, including relevant testimony from the one-day bench trial, may be summarized as follows. In September 2010, police went in response to a tip to a Brattleboro bridge to perform a welfare check on a four-year-old child. Under the bridge, police discovered defendant engaged in an apparent sexual act with a man while defendant’s son was a few feet away. At trial, one of the officers described the area, which was adjacent to a brook, as “littered with trash, glass, urine, [and] feces.” Another officer testified to the presence of “trash everywhere, broken glass, feces [and] urine.” The child, who was standing ten feet from the brook beneath the bridge, was barefoot and wore only soiled shorts. Consistent with the officers’ testimony, the trial court found that that there was no impediment of any sort between the child and the brook. When the officers arrived, the child walked some twenty feet to them while defendant continued to engage in sexual activity without any apparent awareness of her son’s location or the presence of the officers. The judge found that only when the officers directly addressed defendant, telling her to put her shorts on, did she realize that her son had moved. While speaking with the officers, defendant was unsteady, could not maintain her balance, and slurred her words incoherently. In response to the officers’ request, defendant tried unsuccessfully to put shoes on the child and then instead directed him to a filthy sleeping bag and pillow to go to sleep.

¶ 3. Rather than allowing the child to remain under the bridge, one of the officers led the child up the embankment toward the parked police cruisers. Another officer tried to get defendant to climb the slope, as well. According to one officer’s testimony, defendant had difficulty scaling the slope and at one point called to her son to return and help her. Defendant then grabbed the child. The officers pried the child from mother, whose grip appeared to hurt him, and took him the rest of the way up the hill, after which they placed him in another cruiser that took him away. At no time did defendant attempt to comfort her son. Meanwhile, the officers continued to try to get defendant to the roadway. One testified that defendant refused, screaming and throwing herself to the ground. The officer testified that she handcuffed defendant before attempting to climb the hill again because of defendant’s demeanor. The trial court found that as defendant attempted to scale the slope, she stumbled and fell, presumably because of her extreme intoxication.

¶ 4. After eventually getting to the top of the slope, defendant continued to argue with police, disobeying commands to approach the roadway, dropping to the ground and refusing to move. The trial court found that as defendant went limp, she hit her head and injured herself. [1] Officers placed her in the cruiser and took her to a nearby emergency room. At the hospital, defendant refused to get out of the cruiser. The officers eventually got defendant into the hospital, where she continued to shout. The officers placed defendant in a so-called safe room, designed to keep patients from hurting themselves or disturbing others. Defendant repeatedly tried to leave the room and was eventually handcuffed to the bed. She banged the bed against the wall so much that it had to be moved.

¶ 5. For a week before these incidents took place, defendant’s son had spent the night at the home of a woman employed by a preschool program. The preschool employee had agreed to care for defendant’s son from time to time because of defendant’s “circumstances and periodic homelessness.” The trial court found that the preschool employee’s apartment was appropriate and safe for a child. On the afternoon of the day police performed the welfare check, the woman had expected to pick defendant’s son up from school to spend the night at her apartment. As she was heading to the school, she happened upon defendant and her son at a local market. Defendant told the woman that she wanted her son to spend the evening with her and that they had a place to stay with a friend. Police later found defendant and her son under the bridge.

¶ 6. Defendant was charged with one count of disorderly conduct in violation of 13 V.S.A. § 1026 and one count of cruelty to a child in violation of 13 V.S.A. § 1304. Defendant was convicted on both counts and timely appealed.

¶ 7. With respect to the disorderly-conduct charge, defendant contends that the acts alleged were not voluntary because police forcibly removed her from a location where her intoxication presented no risk of public inconvenience or annoyance, and placed her in the hospital where her conduct was allegedly disruptive. Defendant also argues that her conduct at the hospital did not constitute “violent and tumultuous” behavior of the type that would support a conviction for disorderly conduct and that the State failed to prove she acted with any intent to cause risk of such harm. With respect to the child-cruelty charge, defendant maintains that the evidence adduced fell short of demonstrating the requisite threat to the child’s health or welfare, that the statute does not criminalize conduct that exposes children to speculative or minor danger, and that the trial court misconstrued the applicable mens rea requirement. We address each charge and argument in turn.

¶ 8. We review the trial court’s factual findings following a bench trial under a clear-error standard. See State v. Godfrey, 131 Vt. 629, 630, 313 A.2d 390, 391 (1973) (“[T]he findings of the lower court must be affirmed if there is any credible evidence to support them....”); accord State v. Palmer, 803 N.W.2d 727, 733 (Minn. 2011) (“We use the same standard of review in bench trials and in jury trials in evaluating the sufficiency of the evidence.”). That is to say, “[w]hen considering a challenge to the sufficiency of the evidence, the Court must determine if the evidence, viewed in the light most favorable to the State and excluding modifying evidence, fairly and reasonably supports a finding beyond a reasonable doubt.” State v. Vargas, 2009 VT 31, ¶ 18, 185 Vt. 629, 971 A.2d 665 (mem.) (quotation omitted). As always, we review the trial court’s legal conclusions, including those related to statutory interpretation, de novo. See State v. Therrien, 2011 VT 120, ¶ 9, 191 Vt. 24, 38 A.3d 1129.


¶ 9. Defendant first challenges her conviction for disorderly conduct under 13 V.S.A. § 1026, arguing that her presence in the hospital was not voluntary and that, in any event, her behavior at the hospital was ...

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