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State v. Noll

Supreme Court of Vermont

October 12, 2018

State of Vermont
Christian J. Noll

          On Appeal from Superior Court, Chittenden Unit, Criminal Division

          James R. Crucitti, J. (motion to dismiss); Dennis R. Pearson, J. (final judgment)

          Sarah George, Chittenden County State's Attorney, and Zachary J. Chen, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellant.

          Thomas J. Donovan, Jr., Attorney General, and Benjamin D. Battles, Solicitor General, Montpelier, for Amicus Curiae Vermont Attorney General.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          ROBINSON, J.

         ¶ 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.[1] Complainant and defendant met and began a romantic relationship in December 2006. In May or June 2007, after a heated argument, complainant considered their courtship over.

         ¶ 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 in Burlington.

         ¶ 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 conversation.

         ¶ 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 no-trespass order.

         ¶ 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 following week.

         ¶ 9. In 2008, complainant requested a relief-from-abuse order against defendant in the superior court; the court denied her request.

         ¶ 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"[2] 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 . . .

         After 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 ...

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