On Appeal from Superior Court, Orange Unit, Criminal Division Robert P. Gerety, Jr., J.
H. Dickson Corbett, Orange County Deputy State's Attorney, Chelsea, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morris, Supr. J. (Ret.), Specially Assigned
¶ 1. Defendant, Thomas Bryan, appeals from the criminal division's denial of his motion to withdraw counsel and order finding him in violation of his probation. The critical question in this case is whether sexually touching a minor violates a probation condition prohibiting violent or threatening behavior. We hold that defendant's act constitutes violent behavior and we affirm the trial court's rulings.
¶ 2. On June 20, 2012, defendant pled guilty to one count of larceny from a person in violation of 13 V.S.A. § 2503. He received a sentence of one-to-five years to serve, all suspended but forty-five days with probation. One of defendant's probation conditions, "standard Condition N, " provided, "Violent or threatening behavior is not allowed at any time." The probation officer testified that she reviewed the conditions with defendant and that he signed and dated the written probation order, acknowledging that he read and understood each condition.
¶ 3. On April 9, 2014, defendant's probation officer filed a violation of probation (VOP) complaint alleging a violation of Condition N on account of two separate occasions in which defendant touched a fourteen-year-old child over her bra while he was responsible for her care as a babysitter. The VOP complaint is based on allegations drawn from affidavits procured during the Berlin Police Department and Department for Children and Families (DCF) investigation of defendant.
¶ 4. The facts, as elaborated at the VOP merits hearing, are as follows. In August 2013, defendant spent a week living with mother and her two children, S.C., age 14, and I.R., age 9, at the Hilltop Inn motel in Berlin. During that week, SC and her brother were left at the motel in defendant's care while mother went to work. S.C. testified that when mother was not present, defendant would "treat [S.C.] differently" by hugging her and holding her hand. She stated that this made her feel "uncomfortable."
¶ 5. S.C. further testified that during one of the days when S.C. and I.R. were in defendant's care, SC was lying on one of two beds in the motel room and playing an Xbox game while I.R. sat on the other bed playing with defendant's phone. Defendant was lying on his side in the bed with S.C., blocking her body from I.R.'s view. Defendant put his arm around S.C., placed his hand on her stomach under her shirt, and asked her if it was "okay." He moved his hand up towards S.C.'s breasts, asking her if "that was okay" and stating that he would not "hurt" her. Defendant then touched S.C.'s breast over her bra. S.C. testified that this made her feel "nervous" and "scared." She asked I.R. if he would like to go to the pool so that defendant would stop touching her.
¶ 6. While at the pool, SC was texting a female friend about an unrelated and potentially embarrassing sexual matter. Defendant stood behind S.C. and read the text messages over her shoulder, upsetting S.C. and causing her to return to the hotel room. Defendant followed S.C. back to the hotel room while I.R. remained at the pool. Once in the hotel room, defendant told S.C. that he would "not tell anyone" about the text messages "as long as" S.C. did not "tell anyone about this, " at which point defendant reached his hand up under S.C.'s shirt and grabbed her breast over her bra a second time.
¶ 7. Some months later, after defendant's relationship with her mother had ended and defendant was incarcerated, SC revealed the alleged sexual conduct that occurred with defendant at the Hilltop Inn to mother and DCF.
¶ 8. Prior to the VOP merits hearing, defendant moved to dismiss the VOP allegations, arguing, among other things, that even if they were true, they were not necessarily violent acts. The court denied defendant's motion to dismiss, finding substantial evidence in the affidavits filed by the State to support the VOP allegations.
¶ 9. At the start of the VOP hearing, defendant's attorney filed a written motion to withdraw, asserting that there had been an "irreconcilable" breakdown in the attorney-client relationship. Defendant explained that his attorney had not completed the necessary investigation for his defense because there were documents in the State's possession that his attorney did not have. He also asserted that the attorney did not file all necessary motions and did not have time for the case. The court rejected the motion to withdraw counsel because defendant failed to show "good cause" or provide sufficient evidence that the attorney's performance was below the applicable standard.
¶ 10. During the VOP hearing, defendant maintained that he never had physical contact with S.C. The court concluded that, based on a preponderance of the evidence, defendant violated probation Condition N when he twice touched the breasts of a minor for his own sexual gratification. In the subsequent disposition hearing, the court revoked ...