State v. Liana M. Roy

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2018 VT 67A

No. 2017-270

State of Vermont Supreme Court

On Appeal from
v. Superior Court, Bennington Unit,
Criminal Division

Liana M. Roy November Term, 2017

William D. Cohen, J.

Alexander Burke, Deputy State’s Attorney, Bennington, for Plaintiff-Appellant.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Davenport, Supr. J. (Ret.),
Specially Assigned

¶ 1. ROBINSON, J. In this amended opinion, we consider whether the State had a

statutory right to appeal from the trial court’s post-guilty-verdict judgment of acquittal, and, if not,

whether this Court should use its authority pursuant to Vermont Rule of Appellate Procedure 21

to grant the State the extraordinary remedy of reversing the trial court’s ruling and reinstating the

guilty verdict. We conclude that the State did not have a statutory right to appeal in this case, and

decline to exercise our authority to grant extraordinary relief. We withdraw our opinion of July 6,

2018, and replace it with this opinion dismissing the appeal and denying the State’s petition for

extraordinary relief.
 ¶ 2. The relevant background is as follows. Defendant Liana Roy was charged with

custodial interference for taking her four-year-old daughter, who was then in custody of the

Department for Children and Families (DCF), on a two-day trip out of the state without DCF’s

permission. After the State rested its evidence at trial, defendant moved for a judgment of

acquittal, V.R.Cr.P. 29, arguing that the evidence failed to demonstrate that she interfered with

DCF’s custody to the degree necessary for 13 V.S.A. § 2451 to apply. At most, defendant argued,

this was just “a visit gone bad.” The court denied this motion, holding that the State had established

the essential elements of its case. After defendant presented her evidence and the State called a

rebuttal witness, the State rested and defendant renewed her motion for a judgment of acquittal.

The court again denied the motion.

¶ 3. The court instructed the jury that the elements of custodial interference include:

(1) defendant, (2) intentionally, (3) took a relative under the age of eighteen, (4) in a manner that

unlawfully deprived the custodian of custody. Regarding the fourth element, the court instructed

the jury that a person acts unlawfully if the person violates a specific court order, and that depriving

a legal custodian of custody means more than preventing the legal custodian from exercising

physical control over the child. In considering whether there was a deprivation, the jury could

consider the amount of time the child was with defendant, or whether defendant attempted to hide

the child from the legal custodian.

¶ 4. The jury convicted. Defendant subsequently moved to set aside the verdict,

V.R.Cr.P. 29(c), or for a new trial, V.R.Cr.P. 33, arguing that nothing in the custody order

specifically put defendant on notice that she was acting in violation of the authority of the legal

custodian, so the State had failed to demonstrate the requisite intent to deprive or interfere with

DCF’s custody.

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 ¶ 5. The trial court agreed and issued a written decision in July 2017 granting

defendant’s motion for a judgment of acquittal. The court noted that “the jury’s verdict was

reasonable” based on the instructions given during the trial. But the court explained that it had

erred in not instructing the jury that, to prove custodial interference when DCF is the custodian,

the State must produce evidence of “a court order . . . detail[ing] the parent-child contact

parameters.” The detailed order provides the parent with notice of “when and where they are

allowed to have contact with their children.” This “bright-line rule,” the court explained, separates

mere “non-criminal interference with a custodian’s wishes” from an “unlawful deprivation of

custody” and tracks § 2451’s original purpose—limiting parent-on-child kidnapping as a means to

circumvent custody arrangements. The court found it dubious that the Legislature “intended to

impose felonious liability . . . based only on the word of the assigned social worker, even when

there is a court order granting DCF custody.” Because the State failed to produce this type of court

order during the trial, the court granted defendant’s motion for a judgment of acquittal.

¶ 6. The State appealed, and without objection from any party, this Court entertained

briefing, held oral argument, and issued a decision rejecting the trial court’s determination that in

the context of a charge of custodial interference against a parent when a child is in DCF custody,

the State must produce a court order detailing the parameters of the parent’s visitation. Our

decision reversed the trial court’s grant of a judgment of acquittal and remanded for the trial court

to enter a judgment of conviction and to sentence defendant.

¶ 7. Ten days later, before the mandate had issued, this Court, on its own initiative,

issued an entry order that noted, “Questions have arisen as to whether, pursuant to 13 V.S.A.

§ 7403, the State may appeal a judgment of acquittal pursuant to Vermont Rule of Criminal

Procedure 29. This question impacts the Court’s jurisdiction to entertain the State’s appeal and

issue a decision in this case.” We accordingly stayed the mandate and requested briefing on the

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question from the parties. We also invited the Attorney General and the Defender General to

submit amicus briefing on the issue.

¶ 8. The State, both through the Bennington State’s Attorney and through the Attorney

General, emphasizes that review of a post-guilty-verdict judgment of acquittal does not violate

defendant’s protections against double jeopardy. They argue that the State’s appeal of the trial

court’s judgment of acquittal is essentially an appeal of an order dismissing an indictment or

information as to one or more counts—an appeal that is expressly permitted by statute.

Alternatively, they ask this Court to treat the State’s appeal as a timely petition for extraordinary

relief pursuant to Rule 21 and to grant relief accordingly.

¶ 9. Defendant and the Defender General argue that the governing statute does not give

the State a right to appeal the trial court’s grant of a judgment of acquittal, and absent express

statutory authority the State has no right to appeal. They argue that extraordinary relief is

inappropriate because the State did not timely request extraordinary relief with the necessary

support, and because the Legislature could have given the State the right to appeal in this scenario,

but did not.

¶ 10. For the reasons set forth below, we conclude that the State did not have a common-

law or statutory right to appeal, and decline to exercise our discretion to grant extraordinary relief.

I. Common-Law or Statutory Right to Appeal

¶ 11. The State has no common-law right to appeal in this case, and the plain language

and history of 13 V.S.A. § 7403 defeat the State’s argument that it has a statutory right of appeal.

The fact that allowing an appeal in this setting would not violate defendant’s double-jeopardy

rights does not change our analysis.

¶ 12. In the United States, the government has not at common law had a right to appeal

in criminal cases. See United States v. Sanges, 144 U.S. 310, 312 (1892) (“[I]t is settled by an

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overwhelming weight of American authority that the state has no right to sue out a writ of error

upon a judgment in favor of the defendant in a criminal case, except under and in accordance with

express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon the

determination by the court of a question of law.”). Any claimed right to appeal by the State must

thus be grounded in a statutory grant of such a right.

¶ 13. Vermont’s statutes provide no such right. The only relevant statute, 13 V.S.A.

§ 7403, provides in relevant part as follows:

(b) In a prosecution for a felony, the State shall be allowed to
appeal to the Supreme Court any decision, judgment, or order
dismissing an indictment or information as to one or more counts.

(c) In a prosecution for a felony, the State shall be allowed to
appeal to the Supreme Court from a decision or order:

(1) granting a motion to suppress evidence;

(2) granting a motion to have confessions declared
inadmissible; or

(3) granting or refusing to grant other relief where the effect
is to impede seriously, although not to foreclose completely,
continuation of the prosecution.

13 V.S.A. § 7403.

¶ 14. The plain language of 13 V.S.A. § 7403 does not support the State’s claims. Our

goal in interpreting statutes is to implement the intent of the Legislature, and we first look to the

plain and ordinary meaning of the statutory language to divine that intent. State v. Wainwright,

2013 VT 120, ¶ 6, 195 Vt. 370, 88 A.3d 423. The statutory list of orders appealable by the State

does not include judgments of acquittal, whether pre- or post-verdict. The plain language here is

not unclear or ambiguous. It does not provide a mechanism for the State to appeal a judgment of

acquittal.

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 ¶ 15. We reject the State’s argument that the trial court’s order here amounted to a

dismissal of the State’s information pursuant to Rule 29 and is thus an appeal of an “order

dismissing an . . . information” that is appealable by the State pursuant to 13 V.S.A. § 7403(b). To

accept this argument, we would have to believe that the drafters of § 7403 did not understand the

distinction between an order dismissing an information and an order entering judgment of acquittal

for the defendant.1 We generally “presume that the [L]egislature chose its words advisedly.”

Robes v. Town of Hartford, 161 Vt. 187, 193, 636 A.2d 342, 347 (1993). Had the Legislature

intended to include grants of judgments of acquittal, or even just post-guilty-verdict grants of

judgments of acquittal, among the orders appealable by the State, it could have done so. It did not.

¶ 16. The historical evolution of § 7403 further reinforces this conclusion. Prior to 1982,

§ 7403 provided:

Questions of law decided against the state . . . arising in a
prosecution . . . for a crime or misdemeanor, shall, upon exceptions
by the state, be allowed and placed upon the record before final
judgment.

When such exceptions are so taken and allowed . . . such court may,
in its discretion pass the same and such cause or proceeding to the
supreme court before final judgment, and the supreme court shall
hear and determine the question upon such exceptions and render
final judgment thereon, or remand the same . . . for further trial or
other proceedings . . . .

1
Black’s Law Dictionary defines “dismissal” as “[t]ermination of an action or claim
without further hearing, esp. before the trial of the issues involved,” and defines a motion for
judgment of acquittal as “[a] criminal defendant’s request, at the close of the government’s case
or at the close of all evidence, to be acquitted because there is no legally sufficient evidentiary
basis on which a reasonable jury could return a guilty verdict.” Black’s Law Dictionary (10th ed.
2014) (emphases added). A dismissal does not necessarily resolve a case on the merits and may
or may not preclude the State from refiling charges. See V.R.Cr.P. 48(b)(2) (providing that unless
court directs that dismissal is with prejudice, dismissal is without prejudice). A judgment of
acquittal is a final judgment on the merits. See Evans v. Michigan, 568 U.S. 313, 318-19 (2013)
(noting finality of acquittal).

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1912, No. 96, §§ 1-2. Pursuant to this version of the statute, this Court allowed an appeal of a

judgment of acquittal entered after a guilty verdict. State v. Mills, 133 Vt. 15, 19, 328 A.2d 410,

413 (1974) (reversing judgment of acquittal entered after guilty verdict). The statute contemplated

the possibility of an interlocutory appeal by the State for virtually any question of law, but the

appeal was not a matter of right; rather, whether to allow the appeal fell within the discretion of

the trial court in the first instance, and this Court on appeal. See V.R.A.P. 5(b) (amended 1982).

The 1982 statutory amendment created a nondiscretionary right of appeal for the State in the

specifically defined circumstances set forth above. See 1981, No. 223 (Adj. Sess.), § 13. But it

eliminated any provision for the State to appeal, as a matter of right or judicial discretion, in all

other cases. Id. The Legislature passed this amendment several years after the Mills case, in which

this Court, applying the prior statute, allowed the State to appeal a judgment of acquittal entered

after a guilty verdict. The Legislature’s choice to omit any reference to judgments of acquittal in

its list of orders appealable by the State, especially given relatively recent case law allowing the

State to appeal a post-guilty-verdict judgment of acquittal, reinforces our conclusion that the

Legislature did not intend to allow the State to appeal post-guilty-verdict judgments of acquittal.

¶ 17. The State’s argument that allowing an appeal in this context would not violate

defendant’s double-jeopardy rights misses the point. Although one purpose of the statute limiting

the State’s opportunities to appeal in criminal cases may be to prevent erosion of protections

against double jeopardy, § 4703 does not purport to track state or federal constitutional protections,

and operates as an independent ground. United States v. Scott, 437 U.S. 82, 85 (1978) (noting that

before Congress passed statute defining government’s right to appeal in criminal cases with

express reference to Double Jeopardy Clause, statutory restrictions on government appeals were

independent of protections of Double Jeopardy Clause). Vermont statute does not authorize the

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State to appeal a judgment of acquittal entered by the court following a jury verdict of guilty,

regardless of whether such an appeal would violate a defendant’s double-jeopardy rights.

II. Extraordinary Remedy

¶ 18. Pursuant to the Vermont Rules of Appellate Procedure, this Court may grant

extraordinary relief “where there is no adequate remedy under [the] rules or by appeal, or through

proceedings for extraordinary relief in the superior court.” V.R.A.P. 21(a)(2). The rule abolishes

the extraordinary writs of certiorari, mandamus, prohibition, and quo warranto, and provides that

relief that would have been available pursuant to those writs is only available as provided in Rule

21. V.R.A.P. 21(b). Parties may commence an action for extraordinary relief by presenting a

complaint to the Court, or through proceedings for extraordinary relief in the superior court.

V.R.A.P. 21(a)(2).

¶ 19. We decline to exercise our discretion to grant the State extraordinary relief pursuant

to Rule 21. Vermont precedent, as well as persuasive authority from other states, supports the

conclusion that, especially given the statutory limits on the State’s right to appeal, we should be

exceptionally cautious in exercising our authority to grant extraordinary relief to correct legal

errors by the trial court that are not otherwise appealable. For several reasons, this case does not

fall within the narrow category of cases in which we can and should exercise our authority to grant

extraordinary relief where there is no adequate remedy by appeal.

¶ 20. Our own case law supports the proposition that we should be especially loath to

grant the State the functional equivalent of an appeal where the Legislature has not conferred a

right to appeal by statute. In the case of State v. Benjamin, we considered an appeal by the State

of a trial court decision dismissing an information against the defendant. 124 Vt. 20, 196 A.2d

507 (1963). We stated, “The jurisdiction of the Supreme Court to hear and determine exceptions

reserved by the State is restricted to appeals expressly authorized by statute.” Id. at 20-21, 196

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A.2d at 508. Because the applicable statute then governing the State’s right to appeal in criminal

cases required a discretionary ruling by the trial court passing the case to this Court before final

judgment, and defendant had not followed this process, this Court concluded that it had no

jurisdiction to entertain the State’s claims of error. In asserting the above bright-line rule, this

Court did not consider the possibility of extraordinary relief pursuant to a common-law writ.

¶ 21. When this Court did consider that possibility in State v. Saari, it established strict

limitations on the court’s proper use of the power of extraordinary relief in the absence of a

statutory direct right of appeal. 152 Vt. 510, 568 A.2d 344 (1989). Saari addressed consolidated

appeals in two cases in which the trial court, having adjudicated defendants guilty pursuant to their

guilty pleas, imposed sentences below the statutory minimums for the respective charges. The

trial court concluded that statutory minimums violated the proportionality clause of the Vermont

Constitution and defeated the defendants’ rights to allocution. The State sought to appeal the trial

court’s denial of its motions to reconsider the respective sentences. Before considering the merits,

this Court considered the jurisdictional question. Because the sentences at issue were for

misdemeanor charges, we concluded that the State had no statutory right to appeal the sentences.

Id. at 513, 568 A.2d at 346. Noting that the State’s appeal did not implicate double-jeopardy

concerns, we concluded that extraordinary relief pursuant to Rule 21 was the proper avenue for

redress. Id. at 514, 568 A.2d at 346-47. We explained:

Mandamus is appropriately invoked to confine an inferior court to
a lawful exercise of its prescribed jurisdiction or to compel it to
exercise its authority when it is its duty to do so . . . but only
exceptional circumstances amounting to a judicial “usurpation of
power” will justify the invocation of this extraordinary remedy. We
hold that the trial court stepped outside its authority by rejecting the
applicable sentencing statute. Therefore, extraordinary relief in the
nature of mandamus is an appropriate vehicle for review.

Id. at 514, 568 A.2d at 347 (citations, quotations, and alterations omitted). Invoking our authority

to suspend rules pursuant to Vermont Rule of Appellate Procedure 2, we treated the State’s appeal

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as if it had requested extraordinary relief pursuant to Rule 21 and we reviewed the trial court’s

rulings. Id. at 514-15, 568 A.2d at 347.

¶ 22. Even though we upheld the constitutionality of the mandatory-minimum sentencing

requirements, and accordingly concluded that the trial court had erred by imposing sentences less

than the mandatory minimums, we declined to actually grant the extraordinary relief of remand

and resentencing. Id. at 521-22, 568 A.2d at 351. Noting that three years had passed since the

defendants’ crimes, and the fact that the delay was occasioned in part by the trial court’s error as

well as delay in the Supreme Court, we concluded that resentencing and incarceration at that point

would be unfair. Id. at 521, 568 A.2d at 351. Accordingly, although we considered the merits of

the State’s challenges, and actually ruled in favor of the State on the law, we denied the State’s

petition for extraordinary relief. Id. at 522, 568 A.2d at 351.

¶ 23. Our decision in Saari strikes a thoughtful balance between this Court’s

constitutionally recognized common-law power to “issue all writs necessary or appropriate in aid

of its appellate jurisdiction,” Vt. Const. ch. II, § 30, and the Legislature’s authority to determine

the circumstances in which the State has a statutory right to appellate review. It does not foreclose

the possibility that we may exercise our common-law and constitutionally recognized authority to

grant extraordinary relief in a proper case, but it generally respects the Legislature’s choices as to

when appellate review may be available to the State. And it leaves the State free to advocate to

the Legislature for a broader right to appeal in criminal cases.

¶ 24. Four aspects of Saari are potentially significant for our purposes. First, we allowed

for the possibility of extraordinary relief in favor of the State even though the statute clearly did

not authorize direct appeal by the State. 152 Vt. at 513-15, 568 A.2d at 347. Second, the standard

we set for granting extraordinary relief was a high one—requiring action by the trial court that

amounts to a “usurpation of power.” Id. at 514, 568 A.2d at 347 (quotation omitted). An error by

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the trial court resulting in improper acquittal of a defendant who was otherwise duly convicted is

not on its own enough to meet that standard. Third, the trial court’s error was not a garden-variety

error interpreting the law or assessing the record that led to the acquittal of a guilty defendant.

Rather, it involved a constitutional ruling by the trial court that amounted to a usurpation of the

Legislature’s prerogative to establish mandatory sentencing minimums. We explained, “The trial

court’s decisions ignore [the Legislature’s] directives and, by doing so, not only thwart the purpose

of the statutes but exceed the court’s lawful authority.” Id. at 519, 568 A.2d at 350. And fourth,

even though this Court recognized the potential for extraordinary relief pursuant to Rule 21, and

concluded that the trial court had exceeded its lawful authority, we still declined to grant the State’s

petition for extraordinary relief on the basis of fairness. So, although Saari recognizes that

extraordinary relief may be available to the State even in the absence of a statutory right to direct

appeal, it also limits that authority to a narrow class of cases.

¶ 25. Our narrow view of the permissible scope of extraordinary relief for the State when

the Legislature has not provided a statutory avenue for review is not unique. In fact, a number of

state courts have concluded that they have no authority to grant the government extraordinary relief

where the legislature has denied the State a statutory right to appeal. For example, in State, ex rel.

Marsland v. Shintaku, 640 P.2d 289 (Haw. 1982) (per curiam), the Hawaii Supreme Court declined

to grant extraordinary relief from a judgment of acquittal entered by the trial court in a murder case

after the jury rendered a guilty verdict. The court reasoned that “the right of appeal . . . exists only

when granted by constitution or statute. Id. at 292. Hawaii’s statutes enumerated the limited

number of instances in which the State could appeal, and did not allow the State to appeal a

judgment of acquittal. Id. The court concluded, “[W]here the legislature has so clearly expressed

its intent to specifically deny government appeals from judgments of acquittal, it must follow

. . . that an extraordinary writ may not be used to circumvent that intent or this court’s duty to

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respect it.” Id. at 293. The court distinguished between extraordinary writs issued “to confine an

inferior tribunal to the lawful exercise of its proper jurisdiction, or to require it to act in accordance

with its prescribed powers when it was its duty to do so” and those seeking to interfere with the

acts, even erroneous ones, that are within the trial judge’s general discretion. Id. at 293-94. Where

the trial court ruling at issue, however erroneous, was within the trial court’s prescribed powers,

the court concluded it was powerless to issue an extraordinary writ or review the merits of the

State’s petition. Id.; see also State v. Cannon, 369 So. 2d 32, 33 (Ala. 1979) (per curiam)

(“Mandamus . . . does not lie to review the proceedings of an inferior court on the ground that they

were erroneous. Nor is mandamus a substitute for appeal.” (citation omitted)); State v. Manck,

870 A.2d 196, 207 (Md. 2005) (“To use the writ to create jurisdiction beyond the boundaries set

forth in statutes would essentially vest . . . this Court with the power to define what can be appealed

by the State merely by identifying the judicial act under consideration as extraordinary.” (emphasis

omitted)).

¶ 26. Other state courts have used extraordinary writs to review cases not appealable by

the government pursuant to statute or rule, but have, like us, narrowly limited the circumstances

in which such review is proper. See, e.g., State v. Dawson, 38 S.W.3d 319, 325 (Ark. 2001) (“The

court will grant a writ of certiorari only when there is a lack of jurisdiction, an act in excess of

jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record.”);

State ex rel. State v. Wilson, 806 S.E.2d 458, 461 (W. Va. 2017) (“The writ of prohibition will

issue only in clear cases where the inferior tribunal is proceeding without, or in excess of,

jurisdiction.”). But see State v. Barrett, 2005 UT 88, ¶ 24, 127 P.3d 682 (explaining that

extraordinary relief may be granted where “a lower court abused its discretion,” and explaining

that factors guiding court’s decision whether to award extraordinary relief include “egregiousness

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of alleged error, significance of legal issue presented by petition, [and] severity of consequences

occasioned by alleged error” (quotation omitted)).

¶ 27. Applying the narrow standard we adopted in Saari, we decline to grant the State

extraordinary relief to reverse the trial court’s judgment of acquittal, even though we do

acknowledge that the trial court erred in entering that judgment, and that, but for the trial court’s

ruling, defendant could properly have been convicted. We base our decision on several factors.

¶ 28. First and foremost, in erring below, the trial court did not overstep its authority, as

in Saari, by declining to follow a clear and proper statutory directive—in that case statutory

mandatory-minimum sentences. The trial court here was authorized by rule to enter a post-guilty-

verdict judgment of acquittal, V.R.Cr.P. 29(c), and its error in doing so arose from a

misinterpretation of the applicable statutory law. In concluding that a court-ordered visitation

schedule with specific parameters was necessary to provide the notice required to support a

custodial-interference conviction of a parent when a child is in DCF custody, the trial court got it

wrong. But it did not reject as unconstitutional or unenforceable a duly enacted statute of the

Legislature, and did not purport to exercise authority it did not have. If such a legal error resulting

in an improper acquittal were sufficient to induce us to exercise our powers of extraordinary relief,

then the statutory limitations on the State’s right to appeal would be meaningless. We could and

would grant extraordinary relief whenever the State sought extraordinary relief for a trial-court

error leading to an improper acquittal—an approach that would upend the careful balance between

our authority and the Legislature’s prerogatives that we struck in Saari.2

2
We note that the State did not actually file an original action in this court seeking
extraordinary relief pursuant to Rule 21, and has not complied with all of the requirements for
filing such a petition. Our decision does not turn on that fact. The State timely filed a notice of
appeal to initiate this proceeding, and we initially adjudicated the matter without objection. We
have the authority to suspend our rules pursuant to Rule 2 and to treat the State’s appeal as a
petition for extraordinary relief pursuant to Rule 21—that’s exactly what we did in Saari. 152 Vt.
at 514-15, 568 A.2d at 347. For the above reasons, however, we decline to exercise that authority.

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 ¶ 29. We need not decide in this case whether there may be circumstances in which other

factors supporting a grant of extraordinary relief can outweigh the fact that the trial court’s error

was nothing more than a misinterpretation of applicable law or failure to properly assess the record.

In this case, no such factors are present. The facts of this case do not involve the kind of especially

shocking conduct or exceptional risks to public safety that might potentially induce us to grant

extraordinary relief. And the trial court’s legal conclusion, while error, was not so egregious that

we are tempted to treat it as an act beyond the court’s jurisdiction. The State has argued broadly

that we should grant extraordinary relief in cases where the State cannot otherwise appeal a ruling

that leads to an improper acquittal, but has not persuasively articulated any compelling

consideration distinguishing this case from any other.

¶ 30. For the above reasons, we withdraw our previous decision in this case, dismiss the

State’s appeal as unsupported by statute, and decline to grant extraordinary relief.

This Court’s July 6, 2018 opinion is withdrawn. This appeal is dismissed and extraordinary
relief denied.

FOR THE COURT:

Associate Justice

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