On Appeal from Superior Court, Windsor Unit, Criminal Division. Katherine A. Hayes, J.
Tracy Kelly Shriver, Windham County State's Attorney, David W. Gartenstein, Deputy State's Attorney, and Cristina Mansfield, Legal Intern, Brattleboro, for Plaintiff-Appellee.
James A. Valente and Thomas W. Costello of Costello, Valente & Gentry, P.C., Brattleboro, for Defendant-Appellant.
Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Burgess, J. (Ret.), Specially Assigned
[¶1] Defendant appeals an order of the Windham Superior Court concluding that
he violated a condition of his probation requiring him to notify his probation officer if he is planning to begin a sexual relationship. We reverse.
[¶2] On October 29, 2009, defendant was convicted of several felony and misdemeanor offenses and placed on probation. In August 2013, after two separate probation violations in 2010 and 2013, defendant was placed on stricter conditions regarding sexual relationships. Included in defendant's list of conditions was Condition 45, which states:
You must inform your [probation officer] of the name and contact information of any person with whom you are planning to have a date or with whom you are planning to begin a dating, sexual or romantic relationship, prior to the date or beginning of the relationship.
[¶3] In March 2014, defendant was given a polygraph test in connection with the terms of his probation. According to the testimony of the polygraph examiner, when defendant was asked if he had engaged in any sexual contact since his last polygraph test, which was administered in October 2013, he admitted to having sexual contact on three separate occasions with the woman who cleans his home.
[¶4] In April 2014, defendant met with his probation officer to discuss his relationship with his housekeeper. He admitted to her that " he had engaged in a sexual relationship with the woman in the six months between the October 1, 2013 polygraph and the March 31, 2014 polygraph." In May 2014, the State filed a violation of probation complaint alleging a violation of Condition 45.
[¶5] On September 3, 2014, the trial court held a merits hearing. At trial, defendant and his housekeeper testified that they have known each other for four years and have been close friends for the past three years. He testified that one incident of sexual intercourse occurred after the more stringent condition went into effect and that any other incident took place before the new condition was imposed. The housekeeper testified to the recent incident and also stated that there had
been one other incident but could not recall if it had occurred before or after the new condition took effect. She added that " it could have been a couple of times, but it was a long time ago."
[¶6] The testimony of defendant and his housekeeper disclosed that, at the time of the recent sexual encounter, the housekeeper did not know that defendant was at home and in the shower. Defendant came out of the shower in a towel while the housekeeper was in the bedroom folding laundry. At that point, the two had sex. The housekeeper testified that there was no planning on the part of either her or defendant. Following the merits hearing, the court found that defendant violated Condition 45, stating:
It was clearly intended and the Court believes it does communicate that [defendant] was not to have sex with people without notifying his [probation officer] in advance. And he had sex with [his housekeeper]. And although it may not have been planned all of the circumstances surrounding it ... strengthens the evidence that [this is] the kind of thing that [defendant] should have anticipated happening, in light of the fact that they've had sex before. She was in his house regularly, they had a close and comfortable relationship with one another. It would have been much, much, much smarter for him to notify [his probation officer]. ... But that didn't happen so the risk was not avoided, and he had sex without permission, again, after condition 45 was imposed. That was a violation.
[¶7] Although the trial court made no explicit findings on the number of incidents and when they occurred, its decision reflects that it was deciding the case based on the occurrence of only one sexual encounter after the date the probation condition was added. Consistent with the trial court's decision, the State bases its argument on appeal on this single incident and does not rely on multiple encounters. Therefore, we cannot decide this appeal, as the dissent suggests, post, ¶ 28, on three sexual encounters in the few months between the October 2013 and March 2014 polygraph tests. Even if we could find in this Court that there were three separate encounters after the new condition was imposed, we have no evidence on the nature of these encounters or their timing and no argument in this appeal with respect to the significance of multiple encounters.
[¶8] Defendant raises two issues on appeal: (1) that the plain language of Condition 45 does not expressly prohibit unplanned sexual contact; and (2) that the language of Condition 45 does not give defendant adequate notice that unplanned sexual contact is prohibited. Defendant challenges both the terms " sexual relationship" and " planning." With respect to the term " sexual relationship," defendant contends that the term " on its face appears to suggest more than a random, spontaneous sexual encounter." With respect to the planning requirement, defendant argues that " [t]here was no evidence that [he] had ever 'planned' a sexual relationship with [his housekeeper]," as they both testified that " ...