Appeal from Superior Court, Caledonia Unit, Criminal Division
Elizabeth D. Mann, J.
A. Warren, Caledonia County State's Attorney, and Timothy
Hartwell, Law Clerk (On the Brief), St. Johnsbury, and David
Tartter, Deputy State's Attorney, Montpelier, for
Matthew Valerio, Defender General, and Dawn Matthews,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. CARROLL, J.
appeals his conviction by jury for dispensing less than 200
milligrams of heroin in violation of 18 V.S.A. §
4233(b)(1). He contends that there was insufficient evidence
to prove that he provided drugs to a confidential informant
during a controlled purchase and, therefore, the court erred
by denying his motion for judgment of acquittal. He also
challenges his sentence, arguing that the trial court did not
account for the nature and circumstances of the crime. We
Factual and Procedural Background
2. At trial, the State presented evidence of the following
facts, taken in the light most favorable to the State. In
summer 2016, Officer Steven Hartwell of the St. Johnsbury
Police Department had a female confidential
informant working for him. She had been facing two
potential charges. Hartwell and the informant agreed that if
she made ten controlled purchases, the State might decline to
pursue these cases against her. A controlled purchase is an
investigative operation in which law enforcement officers
surveil an agent working on their behalf as he or she
attempts to purchase drugs.
3. On August 16, 2016, this informant came to the police
station to tell Hartwell that she might be able to make one
of these purchases from defendant, an African-American male
whom informant knew. With Hartwell watching her, she
telephoned defendant to arrange the purchase. Hartwell then
searched the informant by patting her down and emptying her
purse to make sure that she did not have any drugs, money, or
weapons. He found none. He gave her forty dollars to buy
drugs from defendant, and he placed an audio recorder in her
purse and turned it on. This recorded much of what was said
in the vicinity of the informant during the operation but did
not transmit real-time audio surveillance to the officers.
4. Three representatives from the police department observed
as the informant attempted to make the purchase from
defendant: Officer Hartwell, Chief of Police Paige, and
Captain Gray. They communicated by radio, attempting to
always have at least one of them watching the informant. The
entire operation lasted about one hour.
5. The informant departed from the police station on foot and
walked to a pre-arranged meeting place: 48 Eastern Avenue, an
apartment building called the Republican Block. Hartwell
followed, watching her from his car. He parked across from
the hardware store on Eastern Avenue in front of the state
office buildings. Paige had parked on the same side of
Eastern Avenue, up the hill, closer to the hardware store
than Hartwell. Gray was parked in the municipal lot at Pearl
Street and Eastern Avenue.
6. Defendant met the informant outside the Republican Block.
They remained there for ten to twenty minutes, though
defendant went back inside the building several times without
the informant. Neither Hartwell, Gray, nor Paige saw a
transaction involving the informant occur at this location.
7. The informant and defendant then walked across Eastern
Avenue toward Federal Street. In response, Paige moved his
observation post to Pearl Street, which connects Eastern
Avenue to Federal Street. From his new position, he could see
the informant the entire time that she was on Federal Street,
except during the apparent transaction. After confirming that
Paige could see the informant, Hartwell relocated to the same
area of Pearl Street as Paige. Gray also moved his car. He
drove to the other side of the municipal lot, parking behind
TD Bank, in the closest row of spaces adjacent to the
McDonald's. He faced the drive-through and Federal
Street. His vehicle was situated near the middle of the lot,
as measured from Railroad Street to Pearl Street, so that he
could see the corner of Federal and Pearl, unobstructed by
hedges that otherwise would have blocked his view.
8. Gray watched as defendant walked down Federal Street
toward Railroad Street, while the informant stayed behind and
waited near Federal and Pearl. After about twenty minutes,
defendant returned. Gray then saw a handoff between defendant
and the informant: they quickly joined hands and then
separated, changing directions immediately after touching.
Gray could not see what, if anything, passed between them.
After touching the informant's hand, defendant walked
back down the Federal Street hill, and the informant walked