Articles Posted in Criminal Law

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Defendant Victor Pixley was charged with unlawful trespass after he was found in an unoccupied farmhouse. Defendant testified that he was homeless, and he and his friend entered the property looking for a place to sleep. He stated that he entered the property at night and did not see any signs noticing against trespass. Defendant stated that he does not read so he would not have understood the signs in any event. In closing arguments, defendant admitted to entering the land and going into the farmhouse, but he argued that he was not provided with meaningful notice against trespass. Defendant appealed his eventual conviction, arguing the trial court's instruction to the jury on the notice element of the trespass charge amounted to plain error. Finding no reversible error, the Vermont Supreme Court affirmed. View "Vermont v. Pixley" on Justia Law

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In October 2015, the State charged defendant Michael Tobin with aggravated sexual assault based on allegations that defendant had sexually abused his biological son while the child was under the age of thirteen. After a jury trial in December 2016, the jury found defendant guilty. Defendant, on his own and through counsel, made several arguments on appeal. The Vermont Supreme Court understood those arguments as: (1) there was insufficient evidence that the victim was under thirteen years old because the State provided no evidence of the victim’s date of birth; (2) defendant was not properly informed of the charge; (3) there was a Brady violation because the State withheld recordings of witnesses’ statements; (4) defendant’s counsel provided ineffective assistance; (5) the State violated 3 V.S.A. 129a; (6) the case was outside the statute of limitations; (7) his conviction violated the Double Jeopardy Clause and was untimely filed; and (8) the trial court committed plain error in correcting defendant’s sentence when he was not present. The Supreme Court found no reversible errors and affirmed defendant's convictions. View "Vermont v. Tobin" on Justia Law

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Defendant Christian Noll appealed his conviction for stalking, arguing that: (1) the criminal stalking statute, as it existed when he was charged, was facially unconstitutional under the First Amendment to the U.S. Constitution; (2) application of the statute to his case was unconstitutional; (3) the evidence was insufficient as a matter of law to convict him of stalking; (4) the jury instruction allowed the jury to convict based on time-barred acts; and (5) the jury instruction failed to adequately describe the parameters of the true-threat doctrine under the First Amendment. The Vermont Supreme Court concluded the criminal stalking statute at the time defendant was charged was facially valid because it included within the definition of stalking only constitutionally unprotected threatening speech. The statute was appropriately applied to defendant because, considering the evidence overall, a jury could conclude that the expression, which formed part of the stalking charge, was constitutionally unprotected threatening speech. However, the Court concluded the jury instruction allowed the jury to convict defendant based solely on acts that occurred outside of the applicable statute of limitations. On this basis, the Court reversed and remanded for a new trial. View "Vermont v. Noll" on Justia Law

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In April 2011, having been charged with three felonies and six misdemeanors, petitioner Michael Carpenter pled guilty to one felony: violation of an abuse-prevention order (VAPO), and five misdemeanors as part of a plea agreement. The felony VAPO charge was based on a telephone call petitioner made to his ex-girlfriend in violation of an emergency, ex parte RFA order that, among other things, prohibited petitioner from contacting her. On direct appeal of the sentence, the Vermont Supreme Court rejected petitioner's plain-error argument that the Habitual Offender Act did not authorize enhancing a minimum sentence beyond the underlying offense's statutory minimum. Meanwhile, while his appeal was pending, petitioner filed his first PCR petition, which the PCR court stayed pending resolution of the appeal. After the Supreme Court upheld his sentence on appeal, petitioner filed another PCR that was consolidated with the first. Petitioner sought the same relief on the same grounds in both petitions. Petitioner represented himself at the merits hearing because the Defender General had determined that his claims lacked merit, and the PCR court allowed assigned counsel to withdraw. The first PCR court rejected petitioner's various arguments and denied his petition. Petitioner then filed a second PCR petition which was ultimately dismissed as successive. The Supreme Court reversed and remanded for further proceedings, finding petitioner raised a new argument: that the no-contact provision in the ex parte, temporary RFA, which underlay petitioner’s felony VAPO conviction, was invalid, rendering his indictment for violating that order defective. The central question in this appeal was whether the collateral bar rule precluded a challenge to a facially invalid, emergency, ex parte, relief-from-abuse (RFA) order in the context of a prosecution for violation of that order. Arguing that the State did not establish an abuse of the writ, petitioner appealed the dismissal of his second petition for post-conviction relief (PCR). Because the Supreme Court concluded the collateral bar rule applied, it affirmed. View "In re Michael L. Carpenter" on Justia Law

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Defendant Roy Patten was convicted by jury of aggravated sexual assault. In 2013, complainant and her boyfriend moved to Vermont with defendant and defendant’s girlfriend. At first, the two couples lived next to each other in separate trailers, and later they moved into a house with separate apartments. A shared laundry area connected the apartments. In April 2014, defendant’s girlfriend ended their relationship and moved out. In August 2014, complainant called her sister and said she wanted to leave Vermont and that defendant had been hurting her. Complainant’s family came to Vermont to pick her up, and complainant told them that defendant had repeatedly sexually assaulted her. Complainant and her sister then reported the assault to the police. In September 2014, the police arrested defendant and charged him with aggravated sexual assault. On appeal, defendant argues that the court erred (1) in admitting testimony that defendant told complainant he was a sex offender immediately before the first sexual contact in April 2014 and (2) in excluding testimony regarding a masturbation incident in November 2013. He also argues the court erred in finding the masturbation incident was isolated and not part of an ongoing course of conduct. Defendant claims the errors were not harmless and requests that his conviction be reversed. Finding no reversible error, the Vermont Supreme Court affirmed defendant's conviction. View "Vermont v. Patten" on Justia Law

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Defendant Rebekah VanBuren raised a facial challenge to Vermont's "revenge porn" (disclosure of nonconsensual pornography) statute. Vermont’s law, enacted in 2015, makes it a crime punishable by not more than two years’ imprisonment and a fine of $2,000 or both to “knowingly disclose a visual image of an identifiable person who is nude or who is engaged in sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted, and the disclosure would cause a reasonable person to suffer harm.” The law makes clear that “[c]onsent to recording of the visual image does not, by itself, constitute consent for disclosure of the image.” The images at issue here were sent privately to a man using Facebook Messenger. Defendant described herself as the man's girlfriend. The complainant stated that the night before the pictures were publicly posted, she learned through a friend that defendant had been asking about her. The man denied a relationship with defendant, "[defendant] was obsessed with him." The complainant discovered the pictures on the man's Facebook page. A judge found probable cause for the charge against Defendant. Defendant moved to dismiss, arguing the revenge porn statute violated her First Amendment rights. The Vermont Supreme Court concluded the statute was constitutional, granted the State's petition for extraordinary relief, and remanded this matter for further proceedings. View "Vermont v. VanBuren" on Justia Law

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Defendant Walker Edelman appealed a trial court order denying his motion to suppress and dismiss, in which the trial court concluded that the Vermont Legislature had effectively granted automatic and presumptive consent to an evidentiary breath test by means of the implied consent statute and therefore defendant could not challenge admission of an evidentiary breath sample as involuntarily obtained. The Vermont Supreme Court found that determination of whether consent was voluntary depended on adequate factfinding in the first instance. Here, the trial court did not hold an evidentiary hearing on the issue of voluntariness after defendant raised it, deciding instead that such a challenge was precluded by Vermont’s implied consent law. On this record, the Court could not determine whether defendant voluntarily consented to law enforcement’s request for an evidentiary breath sample. Accordingly, the Court remanded for an evidentiary hearing on this issue. View "Vermont v. Edelman" on Justia Law

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Defendant Jeremy Amidon appealed his conviction by jury of lewd or lascivious conduct with a child. He argued: (1) the trial court should have granted his motion for a mistrial after the State asked prejudicial questions during voir dire that tainted the jury; (2) the court erroneously admitted evidence of his prior incarceration; and (3) that the State was improperly permitted to impeach the defense’s sole witness with a question concerning the molestation of her daughter. Finding no reversible error, the Vermont Supreme Court affirmed. View "Vermont v. Amidon" on Justia Law

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The State appealed a trial court's grant of defendant Ronald Dupuis's motion to suppress evidence arising from a game warden's warrantless search of his property, arguing that because defendant's "no trespass" postings did not comport with Vermont's hunting posting statute, he enjoyed no expectation of privacy. Defendant was charged with taking big game by illegal means as well as baiting and feeding deer. Although the warden testified that he saw no signs posted, defendant and others testified, and the trial court found, that defendant had posted between twenty-five and thirty signs stating "no trespassing" or "keep out" around the perimeter of his property, located approximately 100 to 150 feet apart. A gate with multiple "no trespassing" signs blocked the main entrance onto defendant's property. There was no evidence that the game warden had a warrant or suspicion of criminal activity at the time he entered defendant's land. The trial court granted defendant's motion to suppress evidence obtained from the warden's warrantless search, ruling that it violated Chapter I, Article 11 of the Vermont Constitution. The court held that by posting his land to the extent that he had, defendant "took the steps necessary to clearly communicate to the reasonable person that the public was excluded from his Bloomfield property," thereby preserving his expectation of privacy. Finding no reversible error in the trial court's judgment, the Vermont Supreme Court affirmed. View "Vermont v. Dupuis" on Justia Law

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At issue before the Vermont Supreme Court in this case centered on whether defendant Stuart Lizotte’s Fourth Amendment rights were violated when his online service provider, AOL, searched his transmissions, detected suspected child pornography, and sent information to the National Center for Missing and Exploited Children (NCMEC), which opened the email and attachment and provided it to law enforcement. The Supreme Court concluded AOL was not acting as an agent of law enforcement when it searched defendant’s transmissions, and that NCMEC and law enforcement did not expand AOL’s private search by viewing the file already identified by AOL as containing child pornography. In addition, any expansion of the search by opening the related email did not invalidate the warrant because the other information in the affidavit independently provided probable cause to search. View "Vermont v. Lizotte" on Justia Law