Friday, September 6, 2013

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.

The officers instructed defendant to put her shorts back on.  She did and only then noticed her son had wandered off.  She tried to put the kid’s shoes on him, without success, and then directed him to bed down with a filthy sleeping bag and pillow.  Defendant slurred her way through a conversation with the officers.  The child was led up the embankment by one officer while the other tried to help defendant drunkenly scale the slope.

As you might imagine, defendant struggled with the ascent.  At one point, she called out to her son and asked him to come help her.  She then grabbed the child.  The officers pried him away while his mother clung to him.  The officers finally got the boy up to the car, and then continued urging the now recalcitrant defendant up the hill. 

During her ascent, defendant started screaming and throwing herself to the ground—that is when she wasn’t stumbling and falling.  After reaching topside, defendant continued her drunken argument with the police on the road.  When this failed to persuade the officers, she tried the rag doll technique: she dropped to the ground and refused to move.  Unfortunately, she hit her head in the process, injuring herself.  The officers put her in the car and took her to a nearby hospital.

Defendant refused to leave the car when they arrived at the hospital and recommenced hollering.  When she was removed and taken inside.  She caused such a commotion she was put into a “safe room,” where she was eventually handcuffed to the bed to keep her from trying to leave.  This didn’t stop defendant from continuing to make noise, including banging the bed against the wall, until hospital staff moved the bed away from the wall to prevent further damage.

When the officers finally processed her, defendant was charged with one count of disorderly conduct for “recklessly creat[ing] a risk of public inconvenience or annoyance when she engaged in violent and tumultuous behavior at the [hospital] [e]mergency [r]oom,” and one count of child cruelty for “willfully caus[ing] [her son] to be neglected or exposed in a manner to endanger his health.”  She was convicted on both counts and appealed to the SCOV.

On appeal, defendant takes a shot at both convictions from a few different angles.  With regards to the disorderly conduct conviction, defendant first argued that she could not be held responsible for disorderly conduct when she was involuntarily moved from the non-public locale of the bridge—where, apart from a billy goat, she wasn’t drunkenly bothering anyone—to the busy emergency room.

Vermont law holds that a person can be convicted of disorderly conduct during an arrest, or after an arrest when she is taken “against her will” to a relatively public setting such as a police station.  Defendant here was effectively under arrest and being restrained and/or transported against her will.  So the context fits.  But defendant also decided to throw herself to the ground and give herself a concussion, which necessitated the trip to the more-public hospital.  If conduct at a police station can be sufficient for a disorderly conduct conviction, then conduct at a hospital is fair game, says the SCOV.

Defendant whips out a hypothetical in support of her position: this is no different than the police dragging a drunk from his home to the street, only to charge the poor sot with being drunk in public.  But the SCOV doesn’t buy it.  A public intoxication conviction punishes for one’s condition in public.  A disorderly conduct conviction punishes for one’s behavior in public, and the statute doesn’t require presence in a public space for a conviction, just behaving violently in a public place.  Whether she was hauled there kicking and screaming matters little, says the SCOV, when her conduct upon arrival was to voluntarily cause a ruckus.

Second, defendant argued that the evidence did not show her conduct at the hospital was “violent and tumultuous,” and that she lacked the mental state set out in the charge—recklessly creating a risk of public inconvenience or annoyance as a result of her behavior. Keep in mind that the State specifically charged defendant with violent and tumultuous behavior in a hospital emergency room.  The SCOV has to put the State through the paces of its specific charge, even though the charge contains surplus language not required by the statute.

To test the violence and tumult of defendant’s behavior, the SCOV compares defendant’s conduct with a few previous cases.  In State v. Lund, the conviction was upheld as “tumultuous” where the defendant swore, refused to follow instructions, made some off-color comments about the sheriff, tried to bite the sheriff, and struggled and resisted while being led to a holding cell.  In State v. O’Connell, the conviction was upheld as “violent” where the defendant rudely struck a woman as he passed her, leaving a welt on her arm, because the SCOV found the defendant had exhibited “furious, severe, vehement, extreme, [or] intense” behavior, and used “unjust or improper force.”  Finally, in State v. Begins, the conviction was upheld where the defendant yelled, screamed, kicked, and resisted arrest, and had to be restrained with handcuffs, ankle cuffs, and a seatbelt.

You can probably see where the SCOV is going with this.  Defendant’s behavior fits much of the SCOV’s precedential bill.  Police had to haul her into the emergency room, where she proceeded to swear her head off, causing hospital staff to put her in a “safe room.”  While in the safe room, defendant continued to thrash and trying to leave, which required the police to handcuff her to the bed.  After being handcuffed, defendant banged the bed against the wall so violently that the bed had to be moved away from the wall to prevent further property damage.  This last fact alone justifies the conviction, the SCOV says, because it constituted the sort of unjust and improper force the statute seeks to punish.

Third, defendant argued that she did not recklessly create a risk of public annoyance because hospitals are “inherently unruly places,” and the State failed to prove she was aware that she could create a public risk of annoyance in such a setting.  The SCOV smacks down the first point quickly: the SCOV has previously rejected the idea that the setting for unruly behavior shifts the standard.  No dice.  The SCOV notes that it has no reason to think that behavior not tolerated elsewhere would be tolerated in a hospital emergency room. 

But, the SCOV goes on to the Model Penal Code’s definition of recklessness, and considers whether defendant’s behavior shows she consciously disregarded “a substantial and unjustifiable risk” of public annoyance that constitutes a “gross deviation” from a reasonable standard of conduct.  In other words, did defendant knowingly act out in a manner that was all but certain to cause annoyance and disruption.

The trial court concluded that a place where sick and hurt people seek treatment constitutes an objectively risky place to rage drunkenly.  As long as the evidence showed defendant was subjectively aware of the risk and raged anyways, her behavior would be a “gross deviation” that fits the standard for disorderly conduct.  The SCOV accepts this reasoning and adds that any reasonable person would have understood that purposefully flailing and screaming in a hospital emergency room would create an unreasonable risk of bothering the folks who have to share the space with you.

Defendant couldn’t have missed the presence of medical staff when she was hauled out of the car.  She likely knew she could be disrupting medical care to others, but apparently didn’t care.  This indicates to the SCOV that Defendant was aware she was causing a risk of public inconvenience and that she didn’t much care.  And with that, Defendant loses her challenge to whether she had the necessary mental state during her disorderly conduct.

Defendant’s challenge to her child cruelty conviction was similarly two-pronged.  First, defendant quibbled with the trial court’s finding that the environment under the bridge was dangerous and unhealthy, claiming that her conviction was based on a “speculative risk of harm.”

Recall that the child in question was found meandering, shirtless and barefoot, through a field of broken glass, trash, feces, and urine, next to a brook he could easily have toppled into without the supervision of his mother, who was busy getting laid and too drunk to notice let alone put shoes on her son.  The SCOV says the trial court nailed it when it concluded this was a dangerous and unhealthy area and situation.

But, defendant says, the setting wasn’t that risky and the severity of potential injury was too low to be criminal.  Au contraire, retorts the SCOV—the standard, dictionary definition of “endanger” describes conduct that entails the possibility of harm.  Here, the threat to the child’s health was concrete, and severe enough, to be considered endangerment. 

Moving along, defendant argued that the trial court got the intent requirement of the child cruelty statute wrong.  On this point, the trial court read the SCOV’s precedent to require that the State must prove defendant’s behavior was willful, but need not prove that she intended the potential consequences of her actions.  Regardless of precedent, the trial court figured that the evidence showed defendant knew what conditions she was bringing her son into and did so willfully.

The SCOV has to parse a bit to reach its conclusion on this point.  Recall that the child cruelty statute requires that the State show the defendant neglected or exposed the child “in a manner to endanger” his health.  The SCOV whips out some Elements of Style, or in this case a quote from a California bankruptcy court of an amusing title, English Grammar for the Utterly Confused.  The SCOV notes that the adverbial phrase, “in a manner to endanger,” modifies the preceding bit about neglect or exposure, and limits the scope of the neglect or exposure accordingly.  Under this reading, defendant must have known the danger of the situation, and intentionally exposed the child to those conditions, to be guilty of child cruelty.

Unsurprisingly, the SCOV concludes that defendant was cognizant that she was taking her four-year-old son under a bridge to let him wander freely through a field of broken glass and human excrement, near a burbling brook, while she got too trashed to care and became otherwise entangled to boot.

But wouldn’t this make every parent who allows her child to wander unsupervised through a potentially hazardous area guilty of child cruelty, asks defendant?  No, says the SCOV.  Defendant didn’t accidentally take her son along to her tryst-under-a-bridge; she intentionally exposed him to these dangerous conditions, then got so trashed she couldn’t watch him properly.  The trial court got it right when it found defendant’s willful conduct posed a very real danger to her child’s health and welfare.

In all, bad day for defendant, and she must face the consequences of her poor tryst choices and her subsequent hospital tantrum. 

Just remember folks: if you’re looking to go under the bridge, leave the kid with a friend (with his shoes on), and if you’re going to resist arrest, don’t hit your head on the way down to the pavement, an if the police take you to the hospital cooperate, it’s probably for your own good, and if . . . you see where I am going here.

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