On
Appeal from Superior Court, Windham Unit, Criminal Division
Michael R. Kainen, J.
David
Tartter, Deputy State's Attorney, Montpelier, for
Plaintiff-Appellee.
Matthew Valerio, Defender General, and Rebecca Turner,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and
Pearson, Supr. J. (Ret), Specially Assigned
EATON,
J.
¶
1. Defendant appeals his convictions, following trial by
jury, on two counts of violation of an abuse protection order
(VAPO), second offense. See 13 V.S.A. § 1030. Because we
find the State failed to prove defendant was validly served
with the order he was accused of violating, we reverse.
¶
2. The evidence in support of the jury verdict was as
follows. See Record v. Kempe, 2007 VT 39, ¶ 19,
182 Vt. 17, 928 A.2d 1199 ("In reviewing the jury's
verdict, we view the evidence in the light most favorable to
the verdict, excluding the effect of modifying evidence, and
will sustain the verdict if it is fairly and reasonably
supported by any evidence."). Defendant had been in a
relationship with T.M., and they had a child together. T.M.
had been assaulted by defendant in the past, and he was
convicted of domestic assault on T.M. in February 2012. He
was also convicted of aggravated stalking of T.M. and
violating an abuse-prevention order issued for her protection
in October 2012. He was incarcerated based on the October
2012 convictions. He completed his sentences and was released
from incarceration in Vermont in April 2014.
¶
3. Prior to defendant's release from custody, T.M.
applied for and received a temporary protection order in New
Hampshire, where she lived. The New Hampshire court held a
hearing on T.M.'s request for a final protection order in
June 2014. Both parties and their attorneys were present. At
the conclusion of the hearing, the court indicated it was
going to issue a permanent order of protection in T.M.'s
favor, and T.M. and her attorney left the court.
¶
4. A final order of protection issued. The return of service
of the order indicates it was served on defendant on the day
of the final hearing through service on his attorney. The
final order stated that it was in effect from June 12, 2014,
to June 12, 2015, and that defendant "shall not have any
contact with [T.M.], whether in person or through third
persons, including but not limited to contact by telephone,
letters, fax, e-mail, the sending or delivery of gifts or any
other method unless specifically authorized by the
court." Defendant was also prohibited from coming within
300 feet of T.M.
¶
5. T.M. and defendant had previously received orders in
Vermont concerning child custody, visitation, and child
support. In recognition of this, the final protection order
stated that custody and visitation were governed by the
orders of the Vermont court, that it anticipated that
restrictions on such contact would be registered and
litigated in New Hampshire, and that any modifications to the
Vermont orders would govern in New Hampshire.
¶
6. On the date of the alleged offenses, June 30, 2014,
defendant and T.M. were at the Windham Superior Court because
defendant had filed a motion related to their child-support
order. Defendant arrived at the court first. As T.M. pulled
into the parking lot and was about to get out of her truck,
she heard defendant "hollering to [her] from the end of
[her] vehicle." Defendant asked T.M. if they could talk.
She was panicked and anxious but agreed to talk with
defendant, knowing there was a court officer standing about
thirty feet away. She stayed in her truck and defendant came
closer as he spoke to her. He told T.M. that he
"didn't care about the money, the only reason he was
doing this was so we could talk." He said he wanted to
see their daughter and asked if T.M. could please fix things
so he could see her. He also asked T.M. why she had reported
to the authorities in New Hampshire the threatening phone
calls that led to the protection order and to additional
criminal charges against him in New Hampshire. At that point,
the security officer came toward T.M.'s truck and
defendant left and went into the courthouse. Defendant was
arrested in the courthouse and subsequently charged with two
counts of violation of the New Hampshire abuse-prevention
order, one for having contact with T.M. and one for violating
the 300-foot field restriction.[1] While being arrested, defendant
told the officer he thought the abuse order was only valid in
New Hampshire.
¶
7. Defendant argues the charges against him should be
dismissed because the State failed to prove the existence of
an enforceable abuse-prevention order because it did not
prove the order had been validly served on him. Defendant
also raises challenges to the content of the order,
contending its terms were ambiguous and that the field
restriction in the order impermissibly prevented him from
accessing the courts in connection with the child-support
hearing. Because we agree the State failed to prove valid
service of the order and reverse on that basis, we need not
reach defendant's other contentions.
¶
8. The State's evidence at trial concerning service of
the New Hampshire final abuse- prevention order, which formed
the basis of the VAPO charges in Vermont, established the
final order had been served on defendant's New Hampshire
counsel. T.M. also testified that the judge at the final
restraining-order hearing indicated the final order would be
granted, but T.M. and her counsel left the courtroom before
defendant and his counsel. In addition, the State argued the
final order itself indicated defendant was present at the
final hearing and thus he had notice of the existence of the
final order. The State also contended that defendant's
conduct in approaching T.M. at the Windham Superior Court and
his statement at his arrest showed he knew that an order
existed. The State called no witness to establish in-hand
service of the final order on the defendant.
¶
9. At the close of the evidence, the court denied
defendant's motion for acquittal based upon failure to
prove valid service on defendant. Defendant contended that
New Hampshire law required the final order be mailed to
defendant in order to be properly served. The court disagreed
and charged the jury, over defendant's objection, that
the State was required to prove either that defendant had
been served with the order or that the order had been served
...