On Appeal from Superior Court, Windham Unit, Criminal Division David Suntag, J.
Ashley A. Harriman, Windham County Deputy State’s Attorney and Robert D. Lees, Law Clerk (On the Brief), Brattleboro, and Evan P. Meenan, Assistant Attorney General, Montpelier, for Plaintiff- Appellee.
Matthew F. Valerio, Defender General, and Dawn Matthews, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. This case calls upon us to determine whether it was plain error to instruct a jury that it could convict defendant for violating an abuse-prevention order prohibiting him from harassing petitioner if it concluded that he engaged in conduct that would cause a reasonable person to be “annoyed, irritated, tormented or alarmed.” We conclude that the instruction was plain error, and that the evidence below could not support a conviction for violating the abuse-prevention order, as worded. We accordingly reverse, and remand for entry of a judgment of acquittal.
¶ 2. Complainant and defendant Tyler Waters lived together for several years and have a minor child together. In 2009, after they broke up, complainant got a relief-from-abuse (RFA) order against defendant. For various reasons, the terms of the order were modified more than once. The October 2009 modified final RFA order was based on findings that defendant had abused complainant, there was a danger of further abuse, and defendant represented a credible threat to complainant’s safety. The order prohibited defendant from, among other things, abusing, threatening, stalking, or harassing complainant. It prohibited defendant from communicating or attempting to communicate directly or indirectly with complainant, except that it specifically stated, “[d] efendant may have contact by telephone only.” The order placed no limitation on the frequency, timing, or subject matter of telephone contact. 
¶ 3. The court did not make any findings that defendant had abused the then-two-year-old child, or that defendant posed any threat to the child’s safety. It authorized defendant to have telephone contact with the child on Friday evenings, and provided for weekly contact between defendant and the child at a specified visitation center in accordance with center rules and regulations.
¶ 4. In December 2009, complainant reported to the police that due to the volume of communications from defendant she felt “harassed, bullied, and made to feel guilty.” Complainant told police that defendant had sent her around forty text messages in a one-month period and had called her over thirty times.
¶ 5. The State charged defendant with violating the RFA order; in particular, the State alleged that defendant had violated the prohibition against harassing complainant. Because defendant had previously been convicted of violating an RFA order, this was a second offense, and defendant was subject to up to three years imprisonment, a fine of $25, 000, or both. 13 V.S.A. § 1030(b).
¶ 6. Before the trial started, the court distributed proposed jury instructions to the parties. Both the State and defendant agreed with the court’s proposed instruction on harassment. Accordingly, in its pretrial instructions to the jury, the court defined harassment as follows:
To harass another person means to intentionally engage in a course of conduct directed at that person which would cause a reasonable person to be annoyed, irritated, tormented, or alarmed. The conduct might consist of words, gestures, offensive touching, telephone calls, text messages, or other acts. In this context harassment required proof of active or intentional participation by [defendant]. The mere fact that [complainant] may have been bothered by or that she disagreed with defendant’s actions is not enough by itself to show that [defendant] is guilty of harassment. Also, the word harassment means that defendant’s conduct was persistent. A single inadvertent incident is not harassment, whereas persistent, repeated, annoying conduct directed at another person may be found to be harassment.
¶ 7. At trial, complainant read aloud each of defendant’s texts and explained the context. Some texts simply related to defendant’s weekly telephone call or his weekly visit with the child, or other nuts-and-bolts matters. For example, he texted, “[g] rab stuff if you want later, ” apparently in reference to the clothes complainant had left at defendant’s house. In other texts, defendant suggested meetings or outings with complainant and the child even though the RFA order did not allow defendant other-than-telephone contact with complainant. For example, defendant texted: “Lunch or dinner? Am bored. Hope you feel better. Can watch [the child] or fetch something if you need. Hi, [child’s name]. Let’s check Okemo out.”
¶ 8. In many texts, defendant made overtures to reestablish his relationship with complainant or expressed his loneliness or longing to reconcile. For example, defendant texted: “Hi. Getting in. It’s after work. Call me. Not sure what phone you got. I love you two. Wish to end no-contact soon. Let’s be more normal. No more courts and such. What you think?” Another time he wrote: “Have not any better friend than u. All alone all the time. Wish wuz with u 2. Call me if you need. Till Fri.”
¶ 9. Many if not most texts wove together two or more of these threads. For example, the day before a scheduled visit with the child, defendant texted: “Got few minutes if you wanted to call. If not, okay. I wish we could get together. Miss you two way too much. All I think about. Sorry to bother you. Sneakers on [the child] tomorrow. Love you.” And, finally, defendant appears to have sent some texts in response to messages from complainant. For example, one text began with the words, “[t]hat is awesome, ” and was apparently a response to complainant’s instruction that he could bring snow pants to the next day’s visit.
¶ 10. All told, the State presented evidence of approximately thirty-seven text messages from defendant to complainant spanning approximately a thirty-seven-day period. The average rate of messaging during this period was one per day, although, in fact, many of the text messages were clustered in clumps around events or interactions, so often several days (ranging from two to five) passed between text communications. Defendant did not threaten harm to any person or property in any of the texts, and none of the texts contained language that was profane, threatening, intimidating, or violent.
¶ 11. The complainant testified that the texts were unwelcome, and that she did not think defendant was supposed to be communicating with her. She said, “I believe there were a couple of phone calls that occurred that I know there were a few times where we spoke together-where I believe in these phone calls I actually asked him to stop-stop constantly texting me and calling, ... the way I understood was he wasn’t supposed to be talking to me.” There was no evidence as to when complainant made these requests. 
¶ 12. At the close of the State’s case, defendant moved for a judgment of acquittal. Defendant argued that thirty-seven texts over a one-month period is not something a reasonable person would find harassing. Defendant claimed that he had not intentionally acted to harass and there was no evidence to demonstrate that a reasonable person would find his messages harassing. Defendant claimed that even the complainant described the behavior as irritating rather than annoying. The court denied the motion, concluding that a reasonable person could be annoyed or tormented by repeated requests from a prior abuser for face-to-face contact in contravention of an RFA order. Defendant did not testify, and the case was submitted to the jury.
¶ 13. In the jury charge, the court repeated the substance of its pretrial instruction including its explanation that to harass a person “means to intentionally engage in a course of conduct directed at that person which would cause a reasonable person to be annoyed, irritated, tormented, or alarmed.” Defendant did not object to the court’s instruction.
¶ 14. During its deliberations, the jury submitted a question to the judge asking if there was a legal definition of “tormented” and “annoyed.” The court responded that there was no further legal definition and instructed the jury to apply the “common definitions.” The jury returned a guilty verdict, and defendant filed a timely notice of appeal.
¶ 15. On appeal, defendant argues that the court’s jury instruction on harassment was overly broad, and that the evidence of harassment in this case was insufficient to convict ...