Just Do the Hokey Pokey

By Merrill Bent

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. 

At sentencing, the State requested that the trial court impose a special condition of probation under which defendant would be required to complete a Domestic Abuse Education Program (DAEP).  Ordinarily, DAEP is not recommended for defendant’s type of offense, but the trial court agreed with the State’s assessment that defendant’s unlawful conduct reflected similar dynamics to those found in domestic abuse situations insofar as it was about exerting power and control over the ex-girlfriend and their young son.  Concluding that DAEP might help prevent future, similar incidents, the trial court suspended defendant’s one-to-three-month sentence and imposed DAEP as a special condition of his probation.  The trial court noted that defense counsel could move to modify the probation conditions in the event that the DAEP facilitator determined that the program was not a good fit for defendant or vice versa. 

Thus, to avoid jail time, all defendant had to do was simply “do the hokey pokey and turn it all around” by completing the DAEP program.  Unfortunately, this is where the song and dance fell apart.

Defendant appealed, and asked to stay the DAEP condition pending that appeal.  Defendant asserted that a stay was mandatory under the Rules of Criminal Procedure, however the trial court concluded that, because the sentence was probationary (and his prison sentence was suspended), a stay was discretionary under the rules and, in this case, unwarranted because defendant’s legal challenge did not present a close question.

Just a few months later, defendant’s probation officer filed a violation complaint asking that defendant’s probation be revoked because he failed to adhere to the DAEP probation condition.  Defendant refused to admit to the State’s Attorney’s information, which was a condition of enrollment in DAEP.  This left him unable to enter—let alone complete—the program as required under the terms of his probation.

The trial court denied defendant’s subsequent motion to modify the conditions of his probation as well as his motions stay his sentence, probation requirements, and violation-of-probation proceeding.  With respect to the motions to stay, the trial court reasoned that the circumstances had not changed since the trial court’s earlier denial and a stay was still not warranted. 

As for the motion to modify, defendant claimed that the DAEP condition “set him up to fail” because he did not plead guilty of the crime, and therefore could not be expected to adopt with the State’s version of events—which, of course, had been accepted by the jury at trial.  In rejecting this motion the trial court concluded that, once the jury reaches a verdict of guilt, a defendant might then be required to acknowledge the behavior underlying the offense and take the steps necessary to participate in appropriate services.

After a hearing on the merits of the violation charge, the trial court found that by refusing to complete the mandatory first step of DAEP, defendant could not fulfill the DAEP condition and was therefore in clear violation of the terms of his probation.  The trial court explained that, even though defendant maintained his innocence, the sentence imposed must nonetheless be based upon the jury’s verdict.  Because the sentencing court had determined that DAEP was appropriate under the circumstances, defendant had to comply with the program or face incarceration, even if defendant disagreed with it.  The trial court therefore revoked defendant’s probation, but stayed imposition of the underlying sentence pending appeal.

Defendant appealed this revocation to the SCOV, which consolidated it with the appeal from his conviction.

On appeal, the SCOV quickly rejects defendant’s assertion that the State did not prove its case because a car is not a “place” as contemplated by the unlawful trespass statute.  According to defendant’s argument, the law applies only to land, residences, and buildings, and therefore did not apply to vehicles.  The statute applies, however, to unlawful trespass “on any land or in any place”; accordingly, the SCOV concludes that the statute, by its plain terms (and by common sense), applies to vehicles—which evidently fall into the broad second category of “any place.”

Defendant next argued that the DAEP condition was not reasonably related to the crime of which he was committed because it was not classified as a crime of violence.  On that basis, defendant asserts that the trial court abused its discretion by imposing the DAEP condition.  The SCOV concludes that the trial court provided a reasonable basis for its determination and that the sentence imposed was consistent with the law.

Turning to the violation of parole, defendant asserts that the DAEP condition required him to admit to facts that were recited in the State’s information but not necessarily the facts found by the jury.  The SCOV agrees with the trial court that, contrary to defendant’s assertions, he had the choice—however disagreeable—to either comply with the terms of probation or to refuse and face the consequences of violation.

In a related, final argument, defendant asserts that he was never specifically requested to admit to the conduct underlying his conviction, so his refusal to do so could not have been the reason he did not complete (or even enter) DAEP.  Based on that logic, defendant claims error in the trial court’s finding that he violated probation. 

In addressing this argument, the SCOV cites testimony from both the DAEP coordinator and defendant’s probation officer that defendant refused to admit to the offense underlying the sentence, and that he was required to do so in order to be admitted into the program.  The SCOV also points out that, even if the DAEP coordinator did not distinguish between the facts in the State’s information and the specific findings of the jury, defendant steadfastly maintained his innocence, refusing to admit any wrongful conduct at all.  Accordingly, the SCOV finds that the evidence supported the trial court’s conclusion that defendant refused to admit to his offense and that he was denied admission to the DAEP program on that basis.

Rather than stick with the dance that many children can easily master and follow the simple steps required to avoid prison time, defendant chose instead to tango with the court, and his situation quickly devolved to the point that it could no longer be turned around.  Things would certainly have gone a lot more smoothly for defendant had he chosen to go through the motions as ordered by the court. 

And who knows, perhaps he might even have benefitted from accepting services—that is, after all, what it‘s all about!