Well, Isn’t It Obvious?

State v. Waters, 2013 VT 109

By Andrew Delaney

Today’s lesson in semantics comes to us via a conviction for violation of a relief-from-abuse (RFA) order. 

Complainant and defendant lived together for several years and had a kid together.  At some point, there was trouble in paradise, and complainant got a RFA order against defendant.  The final order, as modified at the time of defendant’s charge, prohibited defendant from “abusing, threatening, stalking, or harassing complainant” and also prohibited contact with complainant except by telephone.   The order also allowed for phone contact with the parties’ kid on Friday evenings and in-person contact at a visitation center. 

Complainant reported to the police that she felt “harassed, bullied, and made to feel guilty” by the volume of communication from defendant.  He’d apparently texted her nearly forty times and called her over thirty times during a one-month period. 

So the State charged defendant with violating the harassment portion of the order, which due to this being his second violation of a RFA order, was a big, fat felony. 

At trial, the evidence showed that it was thirty-seven texts over thirty-seven days.  The texts were sometimes about the kid, sometimes about how much defendant missed complainant, and sometimes a mix of both (sometimes the texts were in response to complainant’s texts).  None of the texts were threatening or violent.  Complainant read the texts into evidence at trial and explained the context.      

At the close of evidence, defendant moved for acquittal, arguing that no reasonable person would feel harassed by these messages and that even complainant described the texting as irritating rather than annoying.  The court denied the motion on the basis that “a reasonable person could be annoyed or tormented by repeated requests from a prior abuser for face-to-face contact in contravention of an RFA order.”

The pretrial instruction and the charge to the jury included an explanation that to harass a person “means to intentionally engage in a course of conduct directed at that person which would cause a reasonable person to be annoyed, irritated, tormented, or alarmed.”

The case went to the jury.  The jury was all like: “What do ‘tormented’ and ‘annoyed’ mean?  Can we get some legal definitions up in here?”  The judge said: “There’s no further legal definition; use the ‘common definitions.’”  The jury found defendant guilty.  Defendant appealed.

Defendant’s argument on appeal is straightforward: the trial court’s jury instruction on harassment was overly broad, and there wasn’t enough evidence of harassment to convict.

Because defendant failed to object at trial, the SCOV reviews for plain error only.  Thus, a jury instruction need not be perfect and the SCOV simply reviews “to determine if the [jury instructions] breathe the true spirit of the law, and if there is no fair ground to say that the jury has been misled.”  To be plain error, the error must be obvious, prejudicial, and seriously affect “the fairness, integrity or public reputation of judicial proceedings.”      

One might suspect that under plain-error review, defendant’s conviction will be upheld.  One would be wrong. 

The SCOV majority begins its analysis by noting that an RFA order can prohibit precisely the type of conduct that got defendant convicted.  But in this case, the conduct (according to the majority) was not explicitly prohibited by the RFA order.  As the majority frames it, “the central question in this case is whether the RFA order actually issued in this case sufficiently notified defendant that he could be convicted for violating the order’s prohibition on harassment on the basis of his text messages if a jury concluded that the messages ‘would cause a reasonable person to be annoyed, irritated, tormented, or alarmed.’”

The majority notes that “harassment” is not actually defined in the abuse-prevention statutes, although the court-issued-form order specifically includes a not-threaten-or-harass checkbox.  The majority explains that clear notice to a defendant of prohibited conduct is required given the consequences for violating a RFA order. 

Harassment must be more than bothering another person.  The majority acknowledges that common definitions of “harassment” vary greatly.  The majority notes that the only definition in Vermont criminal statutes is within the context of the stalking statute and reads: 

“Harassing” means actions directed at a specific person, or a member of the person’s family, which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death, including but not limited to verbal threats, written, telephonic, or other electronically communicated threats, vandalism, or physical contact without consent.

The majority explains that Vermont’s civil statutes use the term much differently, and that the common usage overlaps both the criminal, civil, and “other” definitions.  For some reason, this makes me think of the people who put stuff on Facebook or other social-media sites, then claim a person who comments (on the stuff they put out there specifically for commentary) is “stalking” them. 

The bottom line is that “harassment”          is a pretty ambiguous-by-context term.  As such, the majority opines that “the most appropriate touchstone for defining the term in the context of a VAPO prosecution is the definition in Vermont’s stalking statute.”

The majority gives several reasons for this conclusion.  First is the rule of lenity—a great little rule that resolves ambiguities in criminal prosecutions in the defendant’s favor.  Second, the purposes of the abuse-prevention and stalking statutes are aligned—both are directed toward preventing violent or threatening behavior.  Third “threaten” and “harass” are joined in a single prohibition in the order.  As the majority sees it “annoy” is sufficiently different from “threaten” whereas “harass” is similar. 

The majority acknowledges that its “construction of the term gives rise to redundancy; but the RFA order itself is rife with redundancy.”  As the majority sees it, the redundancy ensures that defendants understand the types of conduct that are prohibited. 

Attorneys should note that redundancy is paramount when preserving objections.  Play it again, Sam. 

The majority emphasizes that this is a narrow holding, and that courts are free to prohibit whatever kinds of conduct they want (within reason) in the context of a RFA order.  However, when “harass” is not otherwise defined, the majority reasons that term is defined by the stalking statute. 

The majority also concludes that the error was “sufficiently clear to amount to plain error.”  Though the majority acknowledges that the trial court did its best and nobody objected, the majority reasons that “the instruction that allowed the jury to convict defendant on the basis of objectively annoying conduct was clearly error.” 

Okay.  Don’t get me wrong; I agree with the result here.  But calling the definition of harassment in this particular context plain error stretches even my defense-biased mind.  Isn’t there another way to rule in the defendant’s favor here?  Make it a sufficiency-of-the-evidence case or something—because that’s essentially what it is.  Then note that the form sucks and mention that something has to be done about the definition of harassment.  At least that’s my Monday-morning-quarterbacking point of view.         

The majority also finds significant prejudice.  Defendant was allowed phone contact.  The definition of harassment confused the jury.  It’s likely that defendant wouldn’t have been convicted under the stalking-statute definition.  Seems legit—there were no threats in the texts.

The majority acknowledges that the “repeated texts to petitioner were insensitive, and reasons that complainant would’ve been warranted in asking for a modification of the RFA order.  But the majority also notes that kids text a lot these days and we’re talking about a message-per-day-on-average situation here. 

The majority reasons that under its definition of “harassment,” a jury “could not convict defendant of violating the abuse-prevention order on the basis of the evidence presented below.”  As such, the majority opines that “convicting defendant of a felony on the basis of an overly broad instruction would undermine the fairness of the judicial process.”

And so the majority reverses and sends the case back for the trial court to enter an acquittal.   

Justice Dooley fully concurs in the result and writes separately to suggest an overhaul of the form orders and judiciary forms in general.  As he puts it: “I urge that we use the occasion of this decision to revisit each of these form orders that contain optional standard conditions or terms not required by law.  Such a review is a far better way of addressing the language issues than more piecemeal litigation like this.”  He certainly has a point—this ain’t the first time a form has caused problems. 

Justice Burgess, joined by Chief Justice Reiber, dissents: “It does not take a linguist, a lawyer, or statutes from other states to know that persistently texting your domestic-violence victim to get her within reach, after she has obtained a relief-from-abuse (RFA) order against you and after being told your hectoring is unwelcome, is ‘harassment’ as defined by the trial court below in common parlance.”  The dissent’s focus is on the dynamics of the situation: complainant got an order against an abuser, who then tries to get back together with complainant via text message.  In the dissent’s view, this is textbook harassment.  The dissent reasons that the instruction “was not plainly erroneous, if error at all.”

Nobody objected below and plain error is a high threshold.   The dissent reasons: “Neither ‘harassment’ nor ‘annoyance’ in the context of the RFA order and the specific actions alleged in this case are concepts so esoteric, as posited by the majority, as to require term-of-art refinements beyond the trial court’s instructions.  By ninth grade, the difference between harmless impositions and objectively bullying behavior is clear.  While the majority would infantilize RFA defendants, the instant defendant need not have meditated long over any quandary about the meaning of no-harassment—by simply following the RFA order’s primary mandate to let complainant alone.”

The dissent, as dissents do, attacks the legal reasoning of the majority, opining that the majority is confusing dicta with holdings like struggling first-year law students.   (Those’re my words).  

The dissent notes the empirical danger to abused women when they leave their abusers and the RFA order’s role in protecting victims of domestic violence.  By over-scrutiny of the RFA order, the majority defeats the purpose of RFA proceedings.    

This is not an easy case.  It’s an intersection of criminal, civil, and family law and—as evidenced by three opinions from a five-justice Court—highly subject to interpretation.  From my courtroom experience I can fairly opine that judges are more likely than not to grant RFA orders, even when the order might not be warranted.  That’s understandable.  No judge wants to be the judge that didn’t grant the order when something bad happens later.  And RFA orders are often warranted—I’m not saying they aren’t.  It’s all very complicated.  Is it plain error or just a seemingly unfair result?  I don’t know; I just write the summaries. 

Goodbye, Earl . . . .