This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40
On Appeal from Superior Court, Grand Isle Unit, Criminal Division. Dennis R. Pearson, J.
Affirmed as to the motion for mistrial and the validity of defendant's probation condition. Remanded for the trial court to consider the parties' stipulation regarding the sentence imposed.
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, Joshua S. O'Hara, Appellate Defender and Eric Morgan, Law Clerk (On the Brief), Montpelier, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund and Crawford, JJ., and Zimmerman, Supr. J. (Ret.), Specially Assigned
[¶1] Defendant appeals from a jury verdict that he violated a temporary relief-from-abuse order and also violated conditions of release imposed in an earlier criminal case. Defendant raises two unrelated questions for review. First, he challenges the denial of his motion for mistrial. Second, he challenges the validity of one of his probation conditions. We address and affirm each issue in turn, but remand for the trial court to consider the parties' stipulation as to defendant's sentence.
[¶2] Defendant was charged with two counts arising from the same alleged incident: (1) violation of a term of a relief-from-abuse (RFA) order that required him to remain at least three hundred feet from his girlfriend and her residence and (2) violation of a condition of release from an earlier criminal charge that prohibited him
from contacting his girlfriend. The State alleged that on February 2, 2012, defendant went to his girlfriend's house and made contact with her. The trial began with the introduction of the documents reflecting the requirements that defendant was alleged to have violated -- the conditions of release from the earlier criminal case and the findings, conclusions and order in the RFA case. The trial included three witnesses whose testimony was important to the first issue: defendant, his girlfriend, and a third person who lived in the same house as the girlfriend. The girlfriend and the third person testified that defendant went to the girlfriend's house and made contact with her. Defendant testified that he did not go to the house. Whether defendant was present at the girlfriend's house was the central issue of the trial.
[¶3] Defendant challenged the credibility of both the girlfriend and the third-party observer, and the cross-examination of the girlfriend produced the evidentiary incidents that underlie the first issue on appeal. Defense counsel attempted to cross-examine the girlfriend about her mental health and alcohol use, and she gave answers that defendant argues are irrelevant and so prejudicial as to require a new trial. The girlfriend's testimony included the following exchange:
Defense counsel: You have, and I don't mean any disrespect, I hope you will understand this, but you ...