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State v. Morse

Supreme Court of Vermont

August 30, 2019

State of Vermont
v.
Ellie May Morse

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

          David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

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

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

          EATON, J.

         ¶ 1. Defendant was charged with simple assault on a law enforcement officer, disorderly conduct, and resisting arrest as a result of her encounter with law enforcement officers outside a motel in Bennington in August 2014. Following a trial by jury, defendant was convicted of disorderly conduct and resisting arrest and acquitted of simple assault. After the verdict, defendant challenged her convictions through motions for a new trial and judgment of acquittal, alleging the evidence was insufficient to support the convictions. Defendant appeals from the denial of those motions. We affirm.

         ¶ 2. The facts supporting the verdicts are as follows.[1] Two of defendant's teenage sons were staying at the Southgate Motel, which was adjacent to the Fife and Drum Motel where defendant was staying. One of the sons got in a dispute with the manager of the Southgate, who asked the two boys to leave and then called the Bennington police. Four Bennington police officers responded, arriving at about 9 p.m. The officers were met with yelling directed at them by the boys. The yelling continued as the boys made their way to the Fife and Drum. The officers followed the boys to the motel to discuss their behavior. As the first two officers approached the Fife and Drum, defendant, who had been outside smoking a cigarette, stepped in front of them to block them from going into the motel. The first two officers were able to get past her. However, as the second two officers approached, defendant blocked them from getting past. She was swearing and yelling at them in a loud and boisterous manner, telling them that they had no right to be there and that they had to leave, and that they could not talk with her sons.

         ¶ 3. Defendant then began moving toward the first pair of officers, who had their backs turned to her. As one of the second two officers tried to move past her, she raised her arm, and the officer reacted by grabbing her arm, spinning her around, and attempting to handcuff her. Defendant struggled and stiffened her arms, and her cigarette came in contact with the officer's left forearm. Defendant was then placed under arrest.

         ¶ 4. A jury trial was held on the three charges on March 20, 2018. The judge required the State to elect whether the State was asserting the disorderly conduct charge based upon fighting, tumultuous, or threatening behavior. The State elected to charge defendant with disorderly conduct by engaging in tumultuous behavior. Prior to charging the jury, the court held a jury-charge conference. The court indicated that it intended to charge the jury that the State was alleging defendant engaged in tumultuous behavior "by her statements and words." Three times in the charge conference the State indicated concern that actions, not just words, were required to sustain a conviction for disorderly conduct based upon engaging in tumultuous behavior. In one exchange about the court's proposed disorderly conduct charge, the State said:

"By engaging in tumultuous behavior by her statements and words." Well, I'm concerned about that, that it's limited to words, Judge, because the obvious defense to that is she's there expressing herself and exercising her constitutional right against police with involvement with her sons and so on. And initially, again, when we had-before we started the trial, you had indicated your understanding would be that she got in front of the officers and threw her arms up. See, I'm also concerned, too, by limiting "engaged in tumultuous behavior by her statements and words," that down there in the third-moving down the third essential element is that she engaged in tumultuous behavior. "Tumultuous behavior" means violent outburst or chaotic activity. That seemed to suggest more than words. And so I think by the testimony, Judge, that . . . it's both statements and actions. It's words and actions by Ms. Morse that were the tumultuous behavior.

         Later, the State added:

So again, I think there's just more than just words because-well, either that, or then instruct the defense that they're not-either they can't somehow argue that they have a-that she's got a constitutional right to voice her concerns and her free speech, and that her words, in this case, were protected by the First Amendment.

         ¶ 5. When defense counsel spoke at the charge conference, she endorsed the proposed "statements and words" instruction and disavowed any concern that more than words were required for an action to be tumultuous. Defense counsel stated:

I think that the instruction is fine the way that it is, Your Honor. I did argue in my opening statement that it is not illegal to assert your rights to the police. You can tell the police to leave. You can tell the police that they don't have a right to be there. And I would probably reiterate that in my closing. I'm not requesting that Your Honor include a protected speech instruction in the disorderly conduct, because the officers' testimony was also that she used obscenities and other things like that when she was speaking. ...

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