Plaintiff, a high school female athlete, became a patient of defendant who was an orthopedic surgeon and a professor at the University of Vermont medical school, in September 2000, a few months after her sixteenth birthday. Plaintiff had suffered a hip injury while training for soccer season, and her pediatrician referred her to defendant, whose office notes indicated that she had groin pain near the pubic area. After several visits, defendant told plaintiff that her parents did not need to accompany her to appointments, which sometimes took place on a weekly basis, sometimes after hours. On at least three occasions during the course of his treatment of plaintiff, including one time before her first surgery and another time before her second surgery, defendant inserted his ungloved fingers into plaintiff's vagina. No one other than defendant and plaintiff was present on these occasions. Defendant insisted these penetrations were legitimate medical internal examinations conducted for diagnostic purposes. Plaintiff sued defendant for sexual assault and battery and intentional or reckless infliction of emotional distress. She appealed the superior court's grant of summary judgment to defendant based on a six-year statute of limitations applicable to childhood sexual abuse. The court determined that the limitations period had run as a matter of law before plaintiff filed her lawsuit relied primarily on her statements to police and her deposition testimony concerning her awareness of defendant's wrongful conduct at the time of the alleged assaults. Upon review, the Supreme Court concluded that the court erred by determining the limitations accrual date as a matter of law rather than allowing the jury to weigh inferences from the factual record regarding plaintiff's state of mind and knowledge during the relevant period of time. View "Clarke v. Abate" on Justia Law

Taxpayers are owners and operators of Travia's Inc., a small bar and grill. The company is organized as a S-corporation. They appealed the Department of Taxes' (DOT) assessment of meals tax and alcoholic beverage tax for the audit years 2006, 2007, and 2008, and corporate income and personal income tax for the audit years 2005, 2006, and 2007.  Following a hearing, the Commissioner of Taxes affirmed the Department's assessments. Taxpayers appealed the Commissioner's determination to the civil division, which affirmed. After its review, the Supreme Court concluded that taxpayers did not meet their burden of demonstrating the assessments were incorrect, and therefore upheld the Commissioner's determination. View "Travia's Inc., and Mellion" on Justia Law

The State of Vermont appealed the suppression of evidence obtained in the stop of defendant Marek Tuma's vehicle that led to his arrest and charge of driving under the influence (DUI), arguing that the fact that one side of defendant's front license plate was one to two inches below the other gave rise to reasonable suspicion that he was committing a traffic violation. After review of the trial court record, the Supreme Court agreed with defense counsel that although there were cases where the angle of a license plate would be enough to justify a stop based on non-horizontality, this was not that case. View "Vermont v. Tuma" on Justia Law

A jury convicted Defendant of lewd and lascivious conduct with a child. On appeal, he asserted that the trial court erred in: (1) prohibiting cross-examination of complainant about certain statements she allegedly made; (2) denying his motion for a new trial upon the discovery of an exculpatory post on complainant's MySpace page; and (3) permitting the State to introduce uncharged, prior bad act evidence. Finding that the introduction of defendant's prior contact with the complainant was admitted in error, the Supreme Court concluded the error was harmless. Finding no other error or abuse of the trial court's discretion, the Supreme Court affirmed defendant's conviction. View "Vermont v. Lawrence, Sr." on Justia Law

Defendant appealed a final relief-from-abuse order in which the family division of the superior court concluded that plaintiff was a vulnerable adult and that defendant abused and exploited her. The Supreme Court found there was ample evidence in the record for the trial court to have found that defendant engaged in inappropriate sexual contact with plaintiff, who was a vulnerable adult. View "Smith v. Wright" on Justia Law

Defendant Michael Cahill appealed his convictions for aggravated assault with a deadly weapon and reckless endangerment following an incident where he pointed a loaded firearm at a farmhand. He argued that the court erred: (1) in denying his motion for judgment of acquittal; (2) by improperly instructing the jury on the elements of aggravated assault; and (3) by convicting him of both aggravated assault and reckless endangerment. The Supreme Court found that the trial court record contained sufficient evidence to support the trial court's decision to deny defendant's motion to acquit. Further, the Court found no error in the jury's instructions, "defendant continues to conflate or confuse the State's obligation to prove intent with a purported, but unnecessary, burden to overcome defendant's evidence of benign motive does not mean the instruction ruined his defense." Because the greater aggravated assault offense was upheld, and the State's concession that the felony convictions were mutually exclusive in this case, the Court did not address defendant's third argument.  On remand, the State was ordered to move to vacate one of the convictions at its election. View "Vermont v. Cahill" on Justia Law

Defendant Loren Senna appealed a superior court decision to deny his motion to suppress evidence and dismiss the charges against him. Defendant was convicted of the cultivation of more than twenty-five marijuana plants and for possession. Police had been called to defendant's residence when neighbors heard a screaming child inside. The officers sent to investigate detected the strong odor of marijuana as they moved closer to the front door. The officers saw that the children inside did not appear to be in distress. But after speaking with neighbors, the officers obtained a warrant to search defendant's residence. The trial court found that the State had not established that the police's initial entry into defendant's home was consensual, and excluded the evidence the State gathered during that entry. However, the court denied defendant's suppression motion, concluding that the smell of fresh marijuana just outside the front door and the neighbor's statements provided probable cause to support the issuance of the search warrant. The issues on appeal to the Supreme Court were: (1) whether, in light of Vermont's law exempting qualifying registered patients from prosecution for possession and cultivation of marijuana, the smell of fresh marijuana outside a home, without determination of whether any occupants are registered patients, could support a finding of probable cause; and (2) whether the hearsay statements of an identified neighbor were sufficiently credible to meet the requirements of Vermont Rule of Criminal Procedure 41(c) and the underlying constitutional requirements that Rule embodies. The Supreme Court concluded that both the marijuana odor and the neighbor's statements were properly considered in the probable-cause analysis, and accordingly affirm. View "Vermont v. Senna" on Justia Law

In consolidated appeals, defendant challenged his conviction for unlawful trespass and his obligation (as condition of probation) to complete a Domestic Abuse Education Program (DAEP). Defendant was charged with entering or remaining in a place where notice of trespass was given. The "place" at issue here was his ex-girlfriend's car when, in the course of an argument, she repeatedly demanded he leave. At sentencing, the State asked the court to order defendant to complete DAEP as a special condition of probation. The court recognized that DAEP was a unique recommendation for this type of offense but found the State's request warranted. Defendant's probation officer later filed a probation violation complaint alleging defendant violated the DAEP condition of his probation. The probation officer averred that when defendant attended his intake meeting to determine his eligibility for DAEP, he refused to admit to the information, which was a condition of enrollment. The probation officer asked the court to revoke probation and impose the underlying sentence. Defendant asserted that because he had been convicted of unlawful trespass after trial and did not plead guilty, he should not have been ordered to complete DAEP because the DAEP condition "set him up to fail" because he never agreed with the State's information and affidavit. In reaching its conclusion, the trial court recognized defendant's perception that he was not guilty and therefore could not admit his guilt. At that point, the court told defendant DAEP became obligatory in order to avoid incarceration, regardless of his disagreement with the conviction or sentence, or both. Upon review of defendant's arguments on appeal, the Supreme Court denied his challenge to his conviction. "An unpleasant choice is not synonymous with no choice and, in any event, probation was imposed as a condition to the suspension of the jail term otherwise deemed fitting by the trial court in response to defendant's conviction for unlawful trespass . . . it is not unreasonable for the court to require acknowledgment of those facts by the defendant as a condition of probation.  The evidence amply support[ed] the court's conclusion that defendant violated probation by failing to complete DAEP as ordered." View "Vermont v. Stokes" on Justia Law

Defendant appealed a trial court's denial of his motion to withdraw a guilty plea, arguing that he was not sufficiently advised of the potential immigration consequences of his conviction. Upon review of the trial court record, the Supreme Court found that the language employed during defendant's plea colloquy adequately advised him that a guilty plea could result in deportation or denial of U.S. citizenship. Therefore the Court affirmed the trial court's judgment. View "Vermont v. Mutwale" on Justia Law

At issue in this case was whether a probationer could be charged with violating probation for threatening his probation officer without evidence that he intended the officer hear or learn of the statements. Upon review, the Supreme Court concluded that the State did not make a prima facie case of a probation violation, and accordingly, reversed. View "Vermont v. Johnstone" on Justia Law