This week's title is a reference to the Bob Marley song. The only thing it has to do with SCOV is that SCOV issued three opinions on October 25, 2024.
I like the Bob Marley song for a few reasons: (1) it's a good song musically; (2) the lyrics are positive and a good reminder to take life as it comes—stress is a constant but too much can be a killer in this profession; and (3) the song reminds me of Jamaica (the country, not the town), where I like to go whenever I can (sadly, not often enough). If you get a chance, this is the place to go. Flights from Burlington to Montego Bay are fast and reasonable and the ride from the airport to the hotel is usually around $100. I don't think anyone I've sent to Tensing Pen has been anything other than thrilled with the place. You could probably even argue that the trip should qualify for a few wellness MCLE credits. Do I digress? Boy, do I ever.
We now return to our regular programming.
Our first appeal this week is from a conviction for attempted second-degree murder. Look, I thought about a clever transition. I came up empty.
Defendant appeals his conviction on four grounds: (1) his motion for judgment of acquittal should've been granted; (2) the trial court should have kept certain evidence out; (3) the trial court should not have excluded one of his closing arguments; and (4) the trial court screwed up on his sentence. The case stems from a "violent incident" at the Bennington County Coalition for the Homeless in 2022, in which defendant showed up on a motorcycle, grabbed a knife, chased the victim, held the knife to the victim's throat, struggled with the victim, lost the knife, got it back, dumped the contents of a frying pan on the victim, and then took off again—all in about 45 seconds. The victim, for whatever reason, didn't testify at trial.
On the acquittal front, SCOV asks "whether the evidence, when viewed in the light most favorable to the State and excluding any modifying evidence, fairly and reasonably tends to convince a reasonable
trier of fact that the defendant is guilty beyond a reasonable doubt." Here, there was evidence, on video, that defendant held a knife to the victim’s throat, hit the victim in the head a bunch while holding a knife in his hand. A witness to the attack testified that defendant was trying to slit the victim's throat and that defendant punched the victim repeatedly. Unsurprisingly, SCOV concludes that this testimony and other evidence, including the video footage, is enough evidence of intent to sustain the conviction.
At trial, a police officer testified that the victim told the police officer that the victim had Parkinson's. Defendant argues that this was reversible error. SCOV is unconvinced.
Similarly, SCOV is unpersuaded that the trial court's limiting defendant's argument in some respects (and offering a curative instruction) when defendant tried to argue that the victim would have testified if it was "important" to the victim constitutes reversible error. I need to shorten my sentences. Yeesh.
Speaking of sentences . . . defendant also argues that the trial court screwed up when it went outside the record in imposing his sentence. SCOV is, again, unconvinced. Despite the trial court's finding that this was a particularly egregious act, the trial court still imposed the mandatory minimum sentence. "Courts have broad discretion in sentencing defendants, and we will vacate those sentences for plain error only in exceptional circumstances." This is not an exception case, says SCOV. State v. McMahon, 2024 VT 67.
Next up we have an interesting family law case. Former husband got tagged with an abusive litigation restriction. Today I learned we have a set of statutes for such a thing—for a year now, apparently.
Anywho, the backstory is like a string cite with all kinds of cases and motions that former husband filed against former wife. It's a lot. Last year, a month after the effective date of the statutes referenced above, former wife "moved for an order restricting abusive litigation." In response—and as Dave Barry likes to say, "I swear I am not making this up"—former husband filed an opposition and a whole bunch of motions, a slew of them, really. Read paragraph 15.
In a move that should surprise no one, the trial "court concluded that defendant’s repetitive filings were made for the purpose of abusing, harassing, or intimidating plaintiff," and issued an order prohibiting former husband from engaging in abusive litigation. It required former husband to have an attorney file things or for former husband to get permission from the court to file.
Former husband appeals because of course he does. I don't mean to be disparaging here. I'm sure there's a lot going on here that I don't know about and I'm also sure it's incredibly hard to navigate the judicial system on one's own without legal training. But the picture that SCOV paints here is bleak and—I've got to be honest—a little amusing.
SCOV first gives us a little background on the statutes and applicable standards of review.
Former husband's first argument is that the trial court misapplied the statute when it retroactively applied it. SCOV disagrees, noting that there was no effect on the pending motions, etc. It only applies to new filings. Former husband also argues that this statute prohibits application of new statutes to already pending cases. SCOV notes the exception for procedure, opines that the new laws are primarily procedural, and moves on. Former husband throws out a res judicata argument (former wife sought and didn't get sanctions before), but SCOV bats it away. No traction on the retroactive-application-prohibited front.
Next, former husband argues that the trial court never identified which of his motions were abusive. SCOV looks it over, concluding that there was sufficient identification by the trial court of what was abusive litigation to satisfy the trial court's order.
This brings us to "several other claims in his briefs," which sounds like a double-entendre but is not. SCOV runs through the remaining claims in summary fashion. The bottom line is that SCOV concludes none of former husband's claims have merit and thus affirms the trial court. Former husband will need an attorney or permission from the court to file motions going forward. Knapp v. Dasler, 2024 VT 65.
Our third case is a subdivision permit appeal. The primary issue on appeal has to do with whether certain lots had an easement or right-of-way for road access. The trial court concluded that the applicant had made a "threshold showing" of a right to use the road, issued the permit, then punted on jurisdiction, reasoning that it lacked authority to "determine the existence of an easement or right-of-way in this context."
SCOV reverses and remands. SCOV reasons that the environmental division does indeed have authority and jurisdiction to determine whether an easement or a right-of-way exists. Obviously, there's more to it, including who purchased the land and when, the local zoning regs, whether neighbors have deeded rights-of-ways (rights-of-way? I dunno), whether the subject road was "laid out," and why the trial court needs to go beyond a "threshold showing" on the right to use the road. But I'm running out of steam and that's why we include the link. In re Ranney Dairy Farm, LLC, 2024 VT 66.
Until next time . . . .
Comments
Post a Comment