On Appeal from Superior Court, Addison Unit, Criminal Division Nancy Corsones, J. (2012-003), Helen M. Toor, J. (2012-455)
Robert Butterfield, Addison County Deputy State’s Attorney, Middlebury, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. In these consolidated appeals, defendant challenges his unlawful trespass conviction and his obligation, as a condition of probation, to complete a Domestic Abuse Education Program (DAEP). Defendant also appeals from the court’s denial of his motion to modify his probation conditions and its conclusion that he violated probation by failing to complete DAEP as ordered. We affirm.
¶ 2. Defendant was charged with violating 13 V.S.A. § 3705, which prohibits a person, without legal authority or the consent of the person in lawful possession, from entering or remaining “on any land or in any place” as to which notice against trespass has been given. The unlawful trespass charge arose when defendant refused to get out of his ex-girlfriend’s car when, in the course of a domestic argument, she repeatedly demanded he do so. Defendant maintains that the inside of a car is not a “place” within the meaning of the statute.
¶ 3. The following evidence was presented at trial. Defendant and his ex-girlfriend have a son who was three years old at the time of the incident. The ex-girlfriend has custody of the child; defendant has visitation rights. On the date in question, the ex-girlfriend agreed to go fishing with defendant and the child, have a cookout, and watch the Independence Day fireworks at a local high school. The adults were drinking during the cookout, and defendant behaved antagonistically toward his ex-girlfriend.
¶ 4. On the way to the fireworks, the ex-girlfriend decided that she and the child were not in a good situation, and she told defendant that she planned to go home. As she was driving home, defendant repeatedly called and berated her for leaving. The ex-girlfriend reconsidered her decision and returned to the high school, where she waited in her car while defendant took the child to watch the fireworks.
¶ 5. When defendant and the child returned, the ex-girlfriend tried to secure the child into his car seat in the rear of her vehicle. The child was upset and crying so the ex-girlfriend let defendant take over. Defendant buckled the child into his car seat and stood with one foot in the car and one foot out of the car, with the rear door open. The ex-girlfriend asked defendant to close the car door, but he ignored her. She repeatedly told him to get out of the car so she could leave. When she told defendant that she was going to call the police, he laughed at her. The ex-girlfriend felt that she was in an unsafe situation and called the police. Defendant remained in the car for approximately ten to fifteen minutes, while being told seven to ten times to get out. Defendant did not leave until he heard the police sirens.
¶ 6. When police located defendant approximately an hour later, he initially denied being at the fireworks or having a confrontation with his ex-girlfriend. Defendant was behaving erratically, and he showed signs of being intoxicated. Defendant denied having his foot in his ex-girlfriend’s car and testified that he had never been inside his ex-girlfriend’s car. He stated that he was trying to calm the child down and closed the car door as soon as he had the child secured in his car seat. He admitted that he heard his ex-girlfriend tell him to get out of the car several times. The jury found defendant guilty of unlawful trespass.
¶ 7. At sentencing, the State asked the court to order defendant to complete DAEP as a special condition of probation. The State pointed to the testimony at trial and argued that the case had been fueled by the same dynamics at play in domestic-abuse situations. It maintained that the only way in which to deal with the issues that led to the incident was to address defendant’s attempts to control his ex-girlfriend and her relationship with the parties’ child. The State asserted that DAEP directly addressed these types of issues and it was more suitable than any type of anger-management program.
¶ 8. The court recognized that DAEP was a unique recommendation for this type of offense but found the State’s request warranted. It agreed with the State that the incident was about power and control, with the parties’ son caught in the middle, and that the parties would have many more years of interacting with one another. The court found that DAEP might improve the situation and decrease the chance that similar incidents would recur. The court noted that if the DAEP facilitator decided that the program would not help defendant, or that he was not a good fit for the program, defendant’s attorney could move to modify his probation conditions. The court thus sentenced defendant to one to three months, all suspended, with special conditions of probation including the requirement that he complete DAEP.
¶ 9. In December 2011, defendant filed a notice of appeal from his conviction and sentence, as well as a request to stay the DAEP condition pending his appeal. See V.R.Cr.P. 38 (allowing for stay of sentence of imprisonment or probation under certain circumstances). Defendant initially, and erroneously, argued that a stay was mandatory because defendant was convicted of a nonviolent misdemeanor. See V.R.Cr.P. 38(a) (“A sentence of imprisonment upon conviction of a misdemeanor not involving an act of violence against another person shall be stayed... pending appeal.”). As the court pointed out, however, defendant’s sentence was wholly probationary, and thus, the court had ...