APPEALED FROM: Superior Court, Chittenden Unit, Criminal Division, DOCKET NO. 4229-11-14 Cncr, Trial Judge: James R. Crucitti
THOMAS J. DEVINE, SUPERIOR JUDGE, SPECIALLY ASSIGNED
¶ 1. Defendant was held without bail pursuant to 13 V.S.A. § 7553a on felony charges of aggravated domestic assault, id. § 1043(a)(2), and unlawful restraint, id. § 2406(a)(3). These charges arise from an incident on November 17, 2014 at the home defendant then shared with his former girlfriend, the complainant. Defendant appealed to this Court and a de novo review was held on January 21, 2015, before Superior Judge Thomas J. Devine, sitting by special designation over the single-justice-review proceeding as provided by 13 V.S.A. § 7556(d) and Vermont Rule of Appellate Procedure 9. The State was represented by deputy state’s attorney Emily McCarthy. Defendant was present and represented by attorney Sara Reed.
¶ 2. The facts as found by the trial court are not in dispute. At the de novo hearing, defendant presented additional testimony from his fiancée.
¶ 3. Based on the testimony in the record, together with the unchallenged findings from the trial court’s decision and the additional testimony of defendant’s fiancée, the Court finds the following facts established by clear and convincing evidence.
I. Findings of Fact
¶ 4. Defendant and complainant met in June 2014. They soon began an intimate relationship. Thereafter, complainant falsely claimed to defendant that she was pregnant with his child. Defendant moved into the small, two-bedroom apartment that complainant shared with her roommate, the roommate’s boyfriend, and complainant’s son from a prior relationship. Defendant and complainant slept in the living room. The child occupied one bedroom. The roommate and her boyfriend occupied the other bedroom. After a few months of cohabitation, defendant discovered that complainant was not pregnant.
¶ 5. Complainant testified that defendant was usually nice to her unless “a man was mentioned or if he felt threatened by some other man.” If defendant saw complainant with a man, he would talk to her about “how uncomfortable it made him feel.” Defendant told complainant that if people lie to him or try to cheat him, there are repercussions. Defendant said if he ever caught her with another man, he would hurt them both.
¶ 6. By way of illustration, defendant bragged about something he had done when he was fifteen years old (defendant is now thirty-three). Specifically, defendant explained that a certain person owed him a lot of money. Defendant kidnapped this person and this person’s girlfriend. He brought them to a basement room. Defendant’s plan was to keep them there without food. While these persons were being held in the basement, others came and raped the girlfriend in front of the person who owed defendant the money. Defendant told complainant this story many times.
¶ 7. Defendant’s criminal record shows Pennsylvania convictions for kidnapping and involuntary sexual intercourse from this time period. Despite his status as a juvenile at the time, defendant was sentenced to serve eight to fourteen years. An adult co-defendant who acted with defendant was charged with corruption of a minor.
¶ 8. On November 17, defendant and complainant were in bed. It was 2:30 a.m. The landlord had notified them they were all being evicted the following day. As they tried to sleep, complainant’s phone rang. She did not answer. The phone rang a second time. Defendant asked who it was. Complainant insisted she did not know. Defendant took the phone from her and called the unknown number back. A man’s voice answered. When defendant spoke, the other person hung up. Defendant became upset. He repeatedly demanded to know who had called. Complainant insisted it was a wrong number. Defendant then said, “I have a trick for your ass.”
¶ 9. Defendant went into the kitchen. He returned with a knife. Defendant stepped on the bed with his feet on either side of complainant. Defendant held the knife aloft with one hand and braced his other arm against the wall, leaning over her. Defendant demanded that she tell him who had called.
¶ 10. Defendant then announced he had “another trick for [her] ass.” Defendant went into the roommate’s bedroom and asked for some “baby oil.” The roommate’s boyfriend got dressed and came out of the room, but he did not intervene in the situation. Defendant continued to hold the knife. Complainant pleaded for her son’s sake to be allowed to leave. Defendant said he did not care about the child. Defendant told complainant, “You’re not going anywhere.”
¶ 11. Defendant returned to the kitchen with the baby oil. He heated the baby oil in a pan on the stove. Complainant testified she was “frozen in fear.” She then got off the bed, ran inside her roommate’s bedroom and shut the door. She told ...