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State v. Roy

Supreme Court of Vermont

December 7, 2018

State of Vermont
v.
Liana M. Roy

          On Appeal from Superior Court, Bennington Unit, Criminal Division William D. Cohen, J.

          William D. Cohen, J. Alexander Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellant.

          Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellee.

          Thomas J. Donovan, Jr., Attorney General, and John D.G. Waszak, Assistant Attorney General, Montpelier, for Amicus Curiae Vermont Attorney General.

          Matthew Valerio, Defender General, and Dawn Seibert, Appellate Defender, Montpelier, for Amicus Curiae Office of the Vermont Defender General.

          PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Davenport, Supr. J. (Ret.), Specially Assigned.

          ROBINSON, J.

         ¶ 1. In this amended opinion, we consider whether the State had a statutory right to appeal from the trial court's post-guilty-verdict judgment of acquittal, and, if not, whether this Court should use its authority pursuant to Vermont Rule of Appellate Procedure 21 to grant the State the extraordinary remedy of reversing the trial court's ruling and reinstating the guilty verdict. We conclude that the State did not have a statutory right to appeal in this case, and decline to exercise our authority to grant extraordinary relief. We withdraw our opinion of July 6, 2018, and replace it with this opinion dismissing the appeal and denying the State's petition for extraordinary relief.

         ¶ 2. The relevant background is as follows. Defendant Liana Roy was charged with custodial interference for taking her four-year-old daughter, who was then in custody of the Department for Children and Families (DCF), on a two-day trip out of the state without DCF's permission. After the State rested its evidence at trial, defendant moved for a judgment of acquittal, V.R.Cr.P. 29, arguing that the evidence failed to demonstrate that she interfered with DCF's custody to the degree necessary for 13 V.S.A. § 2451 to apply. At most, defendant argued, this was just "a visit gone bad." The court denied this motion, holding that the State had established the essential elements of its case. After defendant presented her evidence and the State called a rebuttal witness, the State rested and defendant renewed her motion for a judgment of acquittal. The court again denied the motion.

         ¶ 3. The court instructed the jury that the elements of custodial interference include: (1) defendant, (2) intentionally, (3) took a relative under the age of eighteen, (4) in a manner that unlawfully deprived the custodian of custody. Regarding the fourth element, the court instructed the jury that a person acts unlawfully if the person violates a specific court order, and that depriving a legal custodian of custody means more than preventing the legal custodian from exercising physical control over the child. In considering whether there was a deprivation, the jury could consider the amount of time the child was with defendant, or whether defendant attempted to hide the child from the legal custodian.

         ¶ 4. The jury convicted. Defendant subsequently moved to set aside the verdict, V.R.Cr.P. 29(c), or for a new trial, V.R.Cr.P. 33, arguing that nothing in the custody order specifically put defendant on notice that she was acting in violation of the authority of the legal custodian, so the State had failed to demonstrate the requisite intent to deprive or interfere with DCF's custody.

         ¶ 5. The trial court agreed and issued a written decision in July 2017 granting defendant's motion for a judgment of acquittal. The court noted that "the jury's verdict was reasonable" based on the instructions given during the trial. But the court explained that it had erred in not instructing the jury that, to prove custodial interference when DCF is the custodian, the State must produce evidence of "a court order . . . detail[ing] the parent-child contact parameters." The detailed order provides the parent with notice of "when and where they are allowed to have contact with their children." This "bright-line rule," the court explained, separates mere "non-criminal interference with a custodian's wishes" from an "unlawful deprivation of custody" and tracks § 2451's original purpose-limiting parent-on-child kidnapping as a means to circumvent custody arrangements. The court found it dubious that the Legislature "intended to impose felonious liability . . . based only on the word of the assigned social worker, even when there is a court order granting DCF custody." Because the State failed to produce this type of court order during the trial, the court granted defendant's motion for a judgment of acquittal.

         ¶ 6. The State appealed, and without objection from any party, this Court entertained briefing, held oral argument, and issued a decision rejecting the trial court's determination that in the context of a charge of custodial interference against a parent when a child is in DCF custody, the State must produce a court order detailing the parameters of the parent's visitation. Our decision reversed the trial court's grant of a judgment of acquittal and remanded for the trial court to enter a judgment of conviction and to sentence defendant.

         ¶ 7. Ten days later, before the mandate had issued, this Court, on its own initiative, issued an entry order that noted, "Questions have arisen as to whether, pursuant to 13 V.S.A. § 7403, the State may appeal a judgment of acquittal pursuant to Vermont Rule of Criminal Procedure 29. This question impacts the Court's jurisdiction to entertain the State's appeal and issue a decision in this case." We accordingly stayed the mandate and requested briefing on the question from the parties. We also invited the Attorney General and the Defender General to submit amicus briefing on the issue.

         ¶ 8. The State, both through the Bennington State's Attorney and through the Attorney General, emphasizes that review of a post-guilty-verdict judgment of acquittal does not violate defendant's protections against double jeopardy. They argue that the State's appeal of the trial court's judgment of acquittal is essentially an appeal of an order dismissing an indictment or information as to one or more counts-an appeal that is expressly permitted by statute. Alternatively, they ask this Court to treat the State's appeal as a timely petition for extraordinary relief pursuant to Rule 21 and to grant relief accordingly.

         ¶ 9. Defendant and the Defender General argue that the governing statute does not give the State a right to appeal the trial court's grant of a judgment of acquittal, and absent express statutory authority the State has no right to appeal. They argue that extraordinary relief is inappropriate because the State did not timely request extraordinary relief with the necessary ...


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