Appeal from Superior Court, Chittenden Unit, Criminal
R. Crucitti, J. (motion to dismiss); Dennis R. Pearson, J.
George, Chittenden County State's Attorney, and Zachary
J. Chen, Deputy State's Attorney, Burlington, for
Matthew Valerio, Defender General, and Dawn Matthews,
Appellate Defender, Montpelier, for Defendant-Appellant.
J. Donovan, Jr., Attorney General, and Benjamin D. Battles,
Solicitor General, Montpelier, for Amicus Curiae Vermont
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1 Defendant Christian J. Noll appeals from his
conviction for stalking pursuant to 13 V.S.A. § 1062
(2015). He argues that: (1) the criminal stalking statute, as
it existed when he was charged, was facially unconstitutional
under the First Amendment to the U.S. Constitution; (2)
application of the statute to his case is unconstitutional;
(3) the evidence was insufficient as a matter of law to
convict him of stalking; (4) the jury instruction allowed the
jury to convict based on time-barred acts; and (5) the jury
instruction failed to adequately describe the parameters of
the true-threat doctrine under the First Amendment. We
conclude that the criminal stalking statute at the time
defendant was charged was facially valid because it included
within the definition of stalking only constitutionally
unprotected threatening speech. The statute was appropriately
applied to defendant because, considering the evidence
overall, a jury could conclude that the expression, which
formed part of the stalking charge, was constitutionally
unprotected threatening speech. We conclude, however, that
the jury instruction allowed the jury to convict defendant
based solely on acts that occurred outside of the applicable
statute of limitations. On this basis, we reverse and remand
for a new trial.
2. The State presented the following evidence, derived
largely from the complainant's testimony, during the jury
trial below. Complainant and defendant met and began a
romantic relationship in December 2006. In May or June 2007,
after a heated argument, complainant considered their
3. Shortly thereafter, complainant encountered defendant in a
store. Upon seeing her, defendant called out that "she
is a difficult one." Complainant ignored defendant, paid
for her food, and left. Defendant was waiting outside of the
store. Complainant explained to him that she wanted their
relationship to be finished, and she then turned to walk up
the street to her home. Defendant followed complainant, and
the two got into a loud exchange, with complainant eventually
going inside her home.
4. Subsequently, in June 2007, defendant emailed complainant
and invited her to be his guest at a wedding that was to
occur that September. Complainant declined. In August 2007,
defendant emailed complainant and "berat[ed]" her.
On the night of the wedding, defendant called complainant
"sound[ing] intoxicated" and invited her to a
friend's party, and again complainant declined. Later
that same night, complainant was driving in Winooski when she
received an incoming call from defendant's phone, which
she did not answer. Complainant looked in the rearview mirror
and saw defendant on the phone driving "directly
behind" her. Defendant followed complainant to her home
5. When they arrived, defendant stomped toward complainant
angrily, shoved a party favor from the wedding toward her,
and told her she "could have been a better friend."
Defendant began to yell that he "hate[d] [his]
life" and "everybody in it," that complainant
was "the only good thing in [his] life, and now [he
doesn't] even have that," and that he "just
want[ed] to end it all." To complainant, defendant
seemed "really upset, pretty irrational, erratic."
She invited defendant into her apartment because she wanted
to "calm him down to get him some help." Once in
the apartment, complainant sat defendant in her living room
while she went into her kitchen and hid her knives.
Complainant then snuck into a different room and called a
friend who advised her to contact a suicide-prevention
hotline. Defendant found out that complainant had made the
call to her friend, and he took the phone from complainant
and held it over her. After complainant demanded the phone,
defendant gave it to her and ran out of the apartment.
6. In January 2008, defendant called complainant from an
anonymous number wanting to know why she had deleted him as a
friend on her social media account. Complainant told
defendant that she did not want to talk to him or be his
friend. When defendant stated that he was surprised to hear
this, complainant told him to consider it his "official
notice" not to contact her again, and then ended the
7. The following morning, defendant again called complainant
from an anonymous number and told her that he was waiting at
the college where she taught, outside of the classroom for
her class scheduled that morning. This particularly concerned
complainant because she was unsure how defendant knew her
teaching schedule. Defendant sounded angry and said he needed
to talk to her. Defendant stated that he had spoken to
complainant's supervisor that morning. Complainant
replied that she did not want to talk to him and hung up the
phone. Complainant was "scared to death" and called
her supervisor, who directed her to a hidden path onto the
college campus. When complainant entered her office building,
she could hear defendant on a different floor yelling loudly.
Complainant's supervisor met her and walked her to her
office. Security then escorted defendant off campus grounds,
and the college subsequently issued him a permanent
8. After this incident, complainant met with the campus
safety director and her supervisor to discuss a safety plan.
The plan included installing a panic button in
complainant's office, establishing a safe space across
the hall from her office, giving her work schedule to campus
safety officers, and having the officers walk her to and from
her car each day. Complainant stayed with a friend for the
9. In 2008, complainant requested a relief-from-abuse order
against defendant in the superior court; the court denied her
10. The next incident occurred one evening in August 2010. At
approximately 8:00 in the evening, complainant was leaving
her art studio in Burlington and saw defendant in the parking
lot driving very slowly and staring at her "intently . .
. with a furrowed brow." The studio was located off of
the street and behind a different business, which was closed
at that hour, and the parking lot was empty except for
defendant. Defendant sat staring at complainant for "a
couple of minutes," and complainant felt "scared,
surprised, alarmed." Complainant walked backward because
she did not want to turn her back to defendant, went into her
studio, locked the door, and waited a couple of hours for a
friend to pick her up.
11. During this same time period, complainant had a website
and blog for her art that allowed the public to post comments
if they registered a username and password. As administrator
of the website, complainant received email notifications when
people posted comments. In early February 2011, complainant
received notification of a comment from defendant's email
address criticizing her art for being pro-military, for
betraying what defendant felt were complainant's true
liberal political philosophies, and for "deliberately
design[ing] a painting for the sympathies of those who want
to kill." The comment exclaimed, "Go kill 'em
[complainant]! Maybe we'll see more killing!" When
complainant saw this she felt "[u]nsafe" and was
unsure what the references to killing meant. Defendant posted
more comments on three separate dates in April 2011. In one
such comment on April 15, defendant accused complainant of
vandalizing his car and "blacklisting" him from the
police, and he stated that he "was over [her] when [she]
didn't get [her] HIV test." The comment also
referenced complainant's art piece entitled "Shoot
the Terrorist" and made reference to a Vermont Public
Radio mug that she had designed. It also noted that she was
getting married and that her new fiancé was in the
armed services and might "deploy."
Complainant's fiancé was in fact a member of the
Vermont National Guard and had deployed to Afghanistan in
2010. The comments made complainant feel "horrible,
frightened," and she actively tried to find more
security for her wedding.
12. In the fall of 2014, defendant was working as a cab
driver and gave one of complainant's students a ride from
the college to a movie theater in South Burlington. Defendant
asked whether the student knew his "ex," and the
student asked whether it was complainant-who at that point
was the only professor in the student's field of study.
They began to converse about complainant. The student felt
that defendant's "tone . . . was kind of
hostile," and "[h]e mentioned that that [he and
complainant] dated for quite a while, and that [complainant]
was like a damsel in distress." The student felt
uncomfortable with defendant and took a different cab home
after the movie. The student told complainant about this
encounter a short time later.
13. In 2015, defendant stood on a street corner near
complainant's college and distributed copies of a
self-published book. The book is an autobiography with a
chapter partially devoted to defendant's relationship
with complainant. The chapter discusses complainant's
appearance and her attempt to get a restraining order. It
accuses complainant of: perjury; turning other women that
defendant had dated against him; persuading her co-workers to
lodge complaints at defendant's place of employment;
deliberately driving past him to flaunt her new husband;
refusing to get an HIV test when they dated; blocking his
potential employment at her college; and vandalizing his car.
The chapter explains that defendant felt
"traumatized" by complainant's actions after
their break up, was suffering from "Falsely Accused
Syndrome," and that "[m]essy divorces have gone
down cleaner." It mentions that defendant has a copy of
complainant's wedding video. The chapter references her
"Shoot the Terrorist" painting and goes in depth
about how complainant painted the piece to"
'wow' her soon-to-be husband at the time with a
'blind faith' jump from supposed liberal
'artist' to right-wing 'pro-military.'"
The chapter concludes with the following:
[Complainant] was fully aware of all the adversity in my life
and it is for that reason I believe she was trying to put
layer upon layer of stress on me as to try to discover a
"breaking point." In fact, that's exactly what
she was trying to do.
We are now in the fall of 2014 and I still have
[complainant's] followers "Artistically"
vandalizing my car weekly (yes still). [Complainant] has
everything to do with it.
Shoot the terrorist?
Or shoot the "artist?"
Neither are present . . .
seeing this book, complainant felt "[a]bsolutely
threatened that [defendant] was going to follow through on
the act of shooting [her]," and that "[a]ll these
years [she had] wondered when [defendant's] breaking
point was, and this felt like it was a little bit
closer." Complainant notified campus safety and the
Burlington Police Department, and she ...