Tuesday, September 10, 2013

Tax Troubles


Travia’s Inc., and Mellion v. State of Vermont, Department of Taxes, 2013 VT 62

Someone once said that the only things certain in life are death and taxes.  This case, to a degree, disproves the latter.  The Department of Taxes gets to “guesstimate” taxes when business records are questionable. 

Taxpayers, husband and wife, own and operate a small bar and grill as an S-corporation (which means that only the profits passed to the owners are taxed; this is known as a pass-through basis in the trades).  The records they kept were not exactly impeccable.  In fact, there were some—perhaps a lot of—discrepancies.  The Department of Taxes (Department) audited the corporation and found an outside-the-norm cost-of-goods-to-gross-receipts ratio.  During its investigation, the Department found some discrepancies between cash-register receipts and handwritten accounts.  Long story short—according to the Department, something didn’t add up.     

So the Department assessed additional taxes for three years on meals and alcohol based primarily on its determination of appropriate cost-of-good-to-gross-receipts ratios.  Taxpayers requested an administrative hearing, which did not go in their favor.  An appeal to the civil division ensued, where the trial court upheld the assessment.  And . . . yep, you guessed it . . . that’s how we end up at the SCOV.   

Construction Conversion Conundrum

Birchwood Land Company, Inc. v. Ormand Bushey & Sons, Inc., 2013 VT 60

If this case were a play, it would begin something like this:

Developer: Contractor stole sand!  Burn Contractor alive!

Contractor: Developer owes money!  Burn Developer alive! 

Judge: Ugh.  Contractor, you owe Developer for the sand plus prejudgment interest.  Developer, you have to pay Contractor what you owe plus prejudgment interest on that amount.  Neither of you get attorney’s fees.  No punitive damages.  Now go home.

Contractor: I shall appeal this injustice to the SCOV!

Developer: As shall I!

SCOV: Uh, yeah, sorry, but we’re pretty much with Judge on this one.

Look—I never said I was a playwright.  Let’s fill in the blanks a bit, shall we? 

A Crack in the Armor

State v. Betts, 2013 VT 53

Let’s just title this piece with a horrid pun, shall we?

Defendant was charged with felony possession of crack cocaine after a state trooper stopped a vehicle where Defendant was a passenger.  The trooper took Defendant to the barracks for a “consensual” strip search.  The trial court denied Defendant’s motion to suppress, and Defendant entered a conditional guilty plea.  The SCOV reverses on appeal, concluding that Defendant’s so-called “consent” was coerced by the trooper’s threat to unlawfully arrest Defendant.  Bravo, as I for one have trouble believing anyone would willingly agree to go to the barracks with a trooper for a strip search . . . . that is unless it was the plot of some Cinemax late movie where the trooper was also playing smooth jazz saxophone.     

Here’s the skinny: a confidential informant (or “CI” for short) told a state trooper that he had seen “White Steve” and a black dude with a lot of crack.  The timing was unclear, and additional details, beyond the type of car Steve was driving, were scant, but the trooper testified that the CI had provided reliable information in the past.

Bewitched, Bothered, and Besieged


State v. Senna, 2013 VT 67

Today’s case demonstrates the importance of humility in criminal law.  If we should start with a moral, let it be this.  If you have cranky neighbors and you are involved in illegal activity, be nice to your neighbors and discrete in your interactions. 

Some may also view today’s case as another effort by the SCOV to thoughtfully balance several interests, including:

·         The rights guaranteed by the State and Federal Constitutions with the public’s right to be protected from the evils of marijuana (assuming for the moment that they exist);
·         The ability of police to avoid needless, and potentially dangerous, interactions with citizens by accessing available information;
·         The sanctity of the home and our right to be free from government intrusion with the compelling governmental interest in prosecuting low level marijuana dealers on the other.  

It’s really all about perspective, isn’t it?

Friday, September 6, 2013

Just Do the Hokey Pokey


State v. Stokes, 2013 VT 63 

Remember the Hokey Pokey? 

There are conflicting theories about the origin of the song and accompanying dance, but the key to all versions is that the dancers must follow the lyrical directions in order for it to flow.  Today’s defendant started out on the right foot, but things quickly fell apart for him when he stopped following directions from the court.

Defendant was charged with unlawful trespass stemming from a domestic argument with an ex-girlfriend.  During the dispute, defendant continued to stand with one foot in and one foot out of her car, ignoring her numerous demands that he exit the vehicle—at least until he heard approaching police sirens.  Although defendant insisted that he was never in the ex-girlfriend’s car at any point, the jury concluded otherwise and found him guilty of unlawful trespass.  So he put his right foot in, he put his right foot out, and after trial, defendant stood with one foot in a jail cell.

At this point, the trial court shook things all about. 

Flying Solo


Preston v. City of Burlington Retirement System, 2013 VT 56

Score one for the Pro-Ser

Plaintiff worked for the city of Burlington as a firefighter for over a decade.  He filed for and was awarded disability retirement by the City’s Retirement Board due to chronic back pain.  (Those hoses are really heavy.)

A couple years later, the City sent him a questionnaire, which he filled out and returned.  Plaintiff indicated in his cover letter that he was gonna learn to fly.  City then asked him to take a functional capacity medical exam.  Plaintiff wasn’t able to make the first appointment the City set up for him.  He sent a letter, though, noting that he was entitled to five years disability, regardless.  The City kicked it over to its attorney’s office, which terminated Plaintiff’s benefits, but indicated that it would reconsider the decision should Plaintiff submit to a functional capacity examination. 

Scheduling proved problematic, but after the retirement administrator threatened to permanently revoke Plaintiff’s benefits, he was able to schedule an appointment in Texas.  He did not complete a couple of the tests due to fear of injury.  The evaluator discussed this issue with the retirement administrator by phone.  The evaluator also noted that Plaintiff’s concerns were “valid and reasonable” in the notes section.  The evaluator concluded that Plaintiff could not perform the essential duties of a firefighter due to his physical limitations, but that he could pilot a plane.       

Under the Bridge


State v. Amsden, 2013 VT 51

Quaint waterways are a common feature of Vermont’s idyllic landscapes, as are bridges with which to cross them.  While under-the-bridge may not seem like a likely place to spend one’s private time, it is where today’s defendant, young child in tow, decided to have a very drunken tryst one fateful evening in September 2010.  Much to her chagrin, defendant’s decision ultimately resulted in charges of disorderly conduct in a hospital emergency room and child cruelty.

Defendant wasn’t exactly at a high point in life when these events took place.  For at least a week prior to the incident, an acquaintance of defendant had taken defendant’s four-year-old son due to defendant’s “circumstances and periodic homelessness.”  The day of the incident, the acquaintance expected to pick the boy up again to spend the night.  But after running into defendant at the market, defendant said she wanted her son with her for the night and that they would be staying with a friend. 

Later that night, the police received a tip that they may want to do a welfare check on a child under a bridge in Brattleboro.

The police investigated the tip, whereupon they found the completely inebriated defendant, shorts off, having a go at it with a man under the bridge.  Defendant’s child, barefoot and clothed only in soiled shorts, was wandering nearby, ten feet from the banks of the brook, with no apparent supervision, through a field of trash, glass, urine, and feces.  Seeing the police, the boy came over to say hello; mom remained otherwise engaged in her previously mentioned pursuits.

Missed Opportunity

By David Rangaviz

State v. Fellows, 2013 VT 45

American criminal law has long struggled to deal with the unique aspects of sexual assault cases.

The primary issue is one of corroboration.  More often than any other category of cases, sexual assault trials often come down to “he-said/she-said.”  The jury watches the testimony, weighs credibility, and decides who to believe.  Prosecutors often have to rely on the victim’s testimony as their primary, or perhaps only, evidence.  And there are legal, psychological, and social reasons to think they might believe the defendant over the victim.