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State v. O'keefe

Supreme Court of Vermont

March 1, 2019

State of Vermont
Timothy P. O'Keefe

          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 ...

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