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By Andy Delaney
We’ll start with the entry order. This is—surprise, surprise—a hold-without-bail order. Defendant appeals. You know when SCOV starts an order with the defendant’s current 10-11 active charges, his potential habitual offender status, and that the court held a weight-of-the-evidence hearing, the defendant likely is not going to win this round. The three-justice panel affirms the trial court’s decision to hold defendant without bail. State v. Tarbell, 2021 VT 68 (mem.).
Next up, we have an opinion on double jeopardy and probation conditions. In an unusual move, SCOV agrees with defendant on both points. Defendant was convicted of two counts of aggravated sexual assault based on the same act. SCOV reasons that when two subsections of the same statute require proof of the same facts such that one subsection is essentially a lesser-included offense of the other, then there ought not be two convictions on the same set of facts. Reversal for the defense, with instructions to the trial court to pick the one it wants to stick. Bonus points if anyone can identify the case that sounds reminiscent of a failed video-rental chain and tends to be the case that often controls in these double-jeopardy situations. Justice Robinson concurs but notes that the majority’s reasoning could be problematic with distinct aggravating factors leading to multiple convictions for the same act under subsections of the same statute. She encourages the legislature to act. SCOV also knocks back a probation condition that didn’t have findings, reasoning that the trial court can revisit that issue and straighten it out. State v. Hovey, 2021 VT 64.
We also have a case dealing mostly with juvenile procedure. C.L. appeals on a few different procedural and substantive grounds, arguing that he should be returned to his mom’s care. In a somewhat lengthy opinion, SCOV affirms the trial court in all major respects. In re C.L., 2021 VT 66.
Finally, we have a criminal case dealing with the admissibility of videos under the “silent witness” doctrine. So, read this one if you’re looking at introducing video evidence in court because this case speaks about what’s necessary to authenticate surveillance video—and I have to assume the same standard is going to apply in civil cases (at minimum you need some testimony about how the video was made and transferred to the witness). Here, the police officer who testified about the video wasn’t enough to get it in. The majority reverses and remands for a new trial. Justice Eaton, joined by Justice Carroll, dissents, reasoning that the video was admitted in error but that it was harmless error because the jury would have had good reason to convict defendant without the video. State v. Hiltl, 2021 VT 60.
One opinion on August 20, 2021.
Where to begin? I think of Vermont as a neighborly state. That’s probably because I’ve not yet had awful neighbors—or a serious dispute with a neighbor. This week’s case is about a long-running—and when I say long-running, I mean like 30-plus years because some of the parties prevailed on adverse possession claims filed in 2012—dispute over a neighborhood on a private road called the Welch Loop. Because this is a summary, I’m not going to outline every claim and counterclaim. The present case involves plowing charges, private nuisance, trespass, prescriptive easements, retaliation for the 2012 suit, timber trespass, and abuse of process. It’s a lot to unpack. Mr. Rogers would throw up his hands on this one. For the most part, defendant prevailed on his counterclaims in the trial. One important point in this opinion is SCOV holds: “that a sustained and intentional campaign to annoy a neighbor by interfering with the use and enjoyment of the neighbor’s property can amount to a private nuisance.” While this broadens the scope of private nuisance to a degree, SCOV limits the application to those intentional and continued courses of conduct that go beyond occasional annoyance. Another interesting point in the opinion is that even though the counterclaims were brought by defendant as trustee of a trust, technically, and the trust wouldn’t have standing to pursue the personal claims, the parties all understood that the counterclaims were really being brought by both by defendant in his individual capacity and as trustee. It helped that the parties all articulated this understanding on the record before trial, even though a formally amended counterclaim complaint was never filed. SCOV invokes Rule 15(b), which as you likely know is the pleadings-conform-to-the-
I don’t even understand the caption of the opinion. But I’ll attempt to break it down. Allco is a renewable energy provider. It doesn’t like that the Public Utility Commission (PUC, which makes me think of Puck from MTV’s The Real World, but as always, I digress) awarded two contracts to Green Mountain Power under the standard-offer program. While SCOV does explain what that is, I’m not going to. Let’s just say it’s magic and it involves money. Sometimes I picture myself as Calvin’s dad from Calvin & Hobbes when I’m explaining this stuff. At any rate, Allco argues that the PUC was wrong in determining that the proposals submitted by Green Mountain Power on behalf of an undisclosed independent developer were proper provider-block projects (another term that I will not deign to explain). SCOV goes through the by-necessity-ultra-boring analysis and ultimately defers to the agency’s interpretation of its statute. Now there’s something I actually remember from law school. In re Investigation to Review the Avoided Costs that Serve as Prices for the Standard-Offer Program in 2020 (Allco Renewable Energy Limited & PLH LLC, Appellants), 2021 VT 59.
Our memorandum opinion for the week is a criminal case, and more specifically, a hold-without-bail appeal. Defendant is charged with attempted second-degree murder stemming from a fight in public followed by a gunshot. The kicker? It’s all on camera. Defendant was held without bail. On appeal, he argues that the trial court was required to consider the strength of the State’s evidence as well as his potential defense of self-defense. SCOV says, and I am paraphrasing here, “Yeah, no.” SCOV reasons that the requirements for a hold-without-bail order aka a “HWOB” are met here and defendant remains in the pokey awaiting trial. State v. Vialet, 2021 VT 62 (mem.)
Nothing August 6. One entry order July 30th.
In a sentence, the trial court needs to do a little bit more before defaulting to the old hold-without-bail order. The issue in this case is that defendant was accused of some horrific crimes and held without bail in July 2018. Time passed. Then the pandemic came. Then some more stuff happened. And here we are. Throughout the time he was held without bail, defendant filed motions to be let out on bail. SCOV looked at it once or twice and said it was okay. Eventually, this year, he filed a motion to be let out with round-the-clock electronic monitoring. And here’s where the trial court’s discretion gets pushed back on a bit. Here, the three-justice panel reasons that the trial court’s reasoning doesn’t hold up as well when the proposal is for 24-7 electronic monitoring. SCOV concludes that the trial court needed to hold an evidentiary hearing and consider whether the electronic-monitoring proposal affects defendant’s due-process arguments. Back to the trial court for this one. State v. Lebrecque, 2021 VT 58 (mem.)
There were three orders issued the week of July 23, but it’s more like one opinion and two notes.
The first entry order establishes a trustee’s authority in an ongoing license suspension. Nothing much to see here, folks. In re Carris, 2021 VT 55 (mem.)
The only real opinion is a constitutional issue dealing specifically with Vermont’s luring-a-child statute. Appellant was convicted of luring a child because he tried to get someone he thought was a fourteen-year-old boy (but was really a taskforce law-enforcement officer) to meet up and perform a sex act on defendant. After his conviction, he argued that the statute was an unconstitutional infringement on his right to free speech and that the statute was void for vagueness. I can’t say I’m disappointed that SCOV rejects these arguments. Perhaps defendant did not have a lawyer that went to Harvard in the 1970s. There’s a probation conditions issue too. It’s about restrictions on where defendant may live. That piece does get sent back for findings because there were none in the first place. State v. Masic, 2021 VT 56.
Our final entry order is a one-paragraph note that the luring-a-child statute doesn’t violate the First Amendment like SCOV just said above in the Masic case. State v. Curtis, 2021 VT 57 (mem.)