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| Violent or no? |
By Christopher A. Davis
Probation can be a confusing system to navigate. Rules, regulations, contracts, supervisors, fees, costs . . . it can begin to sound less like punishment for your DUI and more like the job site of a metropolitan construction company. But in a 2016 decision, the SCOV clarified one point and emphasized another: first, groping the breasts of your partner’s 14-year-old daughter is considered “violent” behavior for purposes of probation; and second, if you want to fire your assigned attorney, and the court says no, it’s up to you to convince the SCOV that the trial court was unreasonable.
The facts are straight-forward. Defendant is convicted of larceny from a person and given a sentence that is mostly suspended (hanging over his head, so to speak) while he serves a period of probation. One of his probation conditions is that he not engage in “violent or threatening behavior.” This is coincidentally one of the most heavily-litigated probation conditions in recent SCOV history, mostly in the context of whether certain speech may be viewed as “threatening” (not the issue here, as you will see). Once placed on probation, he spends a week with a woman at a hotel in Berlin and on multiple occasions watches her two children, a girl age 14, and a boy age 9, at the hotel while she goes to work. On two occasions, according to a later report by the girl and investigation by local law enforcement and DCF, he touches the girl’s breast over her bra; this behavior occurs in conjunction with statements reportedly made by defendant to the girl encouraging the touching, discouraging the girl from reporting it, and attempting to blackmail her if she does report it by disclosing sensitive information he learned from spying on her use of his cell phone.
In what must have been a shock to local dating circles, defendant’s relationship with the children’s mother independently comes to a close a short time later and he is subsequently incarcerated for reasons undisclosed by the Court. After this point the girl discloses the touching, authorities investigate, and the probation officer responsible for supervising defendant files a violation of probation alleging two counts of violations of the condition prohibiting “violent or threatening behavior.”
Prior to the VOP merits hearing, defendant files a motion to dismiss, arguing that even if the allegations were true, the alleged touching doesn’t constitute “violent” behavior. Trial court denies the motion. On to the hearing. At the outset, defendant attempts to fire his lawyer, citing a host of failures to take the steps defendant felt were necessary to prepare and execute his strategy for the hearing. Again trial court denies, concluding defendant did not show “good cause” for replacing his attorney with another one, or provide sufficient evidence that his attorney’ work was below standard. Defendant goes forward with the hearing, arguing that the alleged touching did not occur. Court finds by a preponderance of the evidence (“more likely than not” or “51%” – the standard utilized in VOP merits hearings, for more see this post) that the touching occurred, that it constituted “violent” behavior, and thus, defendant is in violation of his probation.
Two arguments presented by defendant on appeal: (1) Condition N (prohibiting violent or threatening behavior) is so vague it didn’t provide notice to defendant that the alleged groping behavior would constitute a violation; and (2) the court committed reversible error when it refused to withdraw his counsel. State responds to say the issue of Condition N’s clarity was not addressed below, so let’s not talk about it on appeal, and also, defendant failed to show good cause to fire his lawyer.
Time to get our SCOV on: first, the Court allows the appeal issue of the probation condition’s clarity (specifically as applied to defendant, not the condition itself generally) to be heard because defendant had filed the motion to dismiss before his VOP Merits hearing, which was denied by the trial court. Turning to the argument itself, the Court points out a line of cases establishing that for purposes of bail arguments at arraignment, sexual offenses involving physical contact with juveniles are considered “violent” offenses. Then the Court notes that within the probation statute, sexual exploitation of children (in the Court’s view somewhat analogous to the alleged behavior here) is considered to be a violent offense. Finally on this point, the Court looks to the plain meaning of “violent” and determines that the defendant “oppressively, unjustly, and corruptly exploited his power imbalance to target S.C. in a manner that may be, fairly and plainly, considered violent.” Tell us how you really feel.
Second, turning to defendant’s argument regarding the denied withdrawal of counsel, the Court notes that trial courts have discretion to grant these motions or not, which means the party claiming abuse of discretion by the trial court bears the burden of proof to show the denial was essentially unreasonable. Indigent defendants (those eligible for assignment of an attorney at mostly state expense) don’t have the right to choose which attorney is assigned to represent them. Trial courts should consider whether the attorney in question can provide effective assistance, whether confidence between the attorney and client has been destroyed, whether the request results in undue delay, and whether the request is in and of itself a delay tactic. In this case, the Court reasons that, among other factors, there was no evidence the attorney’s performance was substandard, and the trial court was right to find undue delay in a motion presented the very morning of the VOP Merits hearing.
Affirmed as to both issues. Bonus track: Justice Dooley authors a dissent in which he disagrees with the Court’s conclusion that defendant engaged in “violent” behavior or that defendant had notice that the conduct at issue would violate his probation. While clearly not defending the behavior, Justice Dooley interprets the Court’s decision to expand the concept of “violent” behavior to include an intentional touching that blurs different concepts of “violent” versus “violence,” ignores a definitional component of “excessive” touching or force, and incorporates irrelevant considerations of whether the conduct occurs with sexual intent, or with a child as opposed to an adult. In his view, defendant cannot be found to have had notice that his behavior would be encompassed in this expansive definition of violent behavior.
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