State v. Waters

Burgess, J.,

¶ 41. dissenting. 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 majority recites that complainant secured an RFA order against defendant based on his abuse, the danger of further abuse *250and his credible threat to complainant’s safety, ante, 2, but then recounts his pressure on her to resume their relationship as if these overtures were unrelated to the fact that he recently “caused” and “attempted to cause [her] physical harm.” The majority summarizes defendant’s actions as thirty-seven texts in as many days politely expressing loneliness, love, best friendship and desire to get back together, ante, ¶¶ 7-10, and finds it insufficient to prove harassment. To reach this conclusion, the majority instantly redefines harassment to require nothing less than a threat of bodily injury, unlawful restraint, rape or death. The trial court’s more mundane instruction, however, was not plainly erroneous, if error at all. The evidence in its entirety, including defendant’s abuse of complainant and her testimony that she told him in more than one telephone call to “stop constantly texting . . . and calling” because it caused her stress,7 supports the charge that defendant harassed her in violation of the RFA order beyond a reasonable doubt. Accordingly, I respectfully dissent from redefining harassment and reversing the jury’s guilty verdict.

¶ 42. Adjudged a violent abuser and ordered to stay away from complainant, the evidence was that defendant embarked on a text-messaging campaign to cajole her to return to him — personal contact prohibited by the RFA order. The parties had a child and defendant was granted supervised visitation, and was also allowed telephone contact. As evidenced by the court’s order to stay away, defendant knew complainant did not want personal contact with him and why. Yet, he repeatedly texted her not just about child visitation, but about: his “luv” for complainant; his desire to hug her, have lunch with her, have dinner with her, go to California with her, to “patch this,” meet her at various places, visit with her, have a quick visit, fetch things for her, ski with her, sled with her, shop with her, bowl with her, and be together; what she wanted for Christmas; his concern for her; him being a *251“mess” and crying without her; that he wouldn’t “let [her] down”; whether she had any ideas about what he should do; and missing her. This was all interspersed with how their separation “sucks,” that he wanted an end to “no contact,” was “ready 4 change” and “real fam time,” and that he wanted to be friendly. In a separate message, defendant “regret[ed] past action,” said he was “working to be better” and invited complainant “to do coun[seling] together.” In yet another, defendant hoped for a “family outing soon.” Some of these texts were as frequent as two or three times a day.

¶ 43. The jury unanimously agreed that defendant’s texting violated the RFA order’s prohibition against harassment as defined by the trial court. This definition, without objection from defendant, was that to harass another person meant 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 court further instructed that harassment required proof of intentional, persistent and repeated instances of annoying conduct directed at another person, when a reasonable person under the same circumstances would have been so annoyed, irritated, tormented or alarmed by defendant’s actions. There appears to be no dispute that defendant’s deliberate, near-daily and multiple messaging could be found by the jury as “intentional” and “persistent” conduct “directed” at complainant.8

¶ 44. Absent objection to the balance of the instruction, this Court’s review is limited to plain error only. State v. Mead, 2012 VT 36, ¶ 41, 192 Vt. 1, 54 A.3d 485. Plain error results when four factors are met: there is legal error, the error is obvious, the error affects substantial rights causing prejudice, and the error seriously affects the fairness or integrity of the judicial process. State v. Rounds, 2011 VT 39, ¶ 31, 189 Vt. 447, 22 A.3d 477. We *252look to the instructions as a whole and will reverse “only when the entire charge undermines confidence in the verdict.” State v. Carpenter, 170 Vt. 371, 374-75, 749 A.2d 1137, 1139 (2000). Put another way, “[p]lain error can be found only in exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant’s constitutional rights.” State v. Hoadley, 147 Vt. 49, 53, 512 A.2d 879, 881 (1986).

¶ 45. Nothing of that sort happened here. The alleged error must be “viewed in context.” State v. Kinney, 2011 VT 74, ¶ 13, 190 Vt. 195, 27 A.3d 348. Given the specifically described texting behavior in the context of defendant’s abuse of complainant, and the resulting RFA order, the court’s inclusion of “conduct which causes a reasonable person to be annoyed” within its definition of “harassment” was no obvious error at all. Indeed, it was neither unconstitutionally overbroad nor inherently unfair to hold defendant accountable, and criminally responsible, under the RFA order for relentlessly and deliberately annoying his victim by pestering her by text to return to him.

¶ 46. Only in the abstract can the majority opine that “annoying acts” can never, as a matter of law, suffice for harassment prohibited by an RFA order. Ante, ¶ 29. Surely no one should be convicted for mere annoyance lest we all be eventually prosecuted, but that is neither the charge nor a remote danger here. Whether there is fair notice that annoyance can qualify as harassment must depend upon the context of the circumstances in which the RFA was imposed. See State v. Hinchliffe, 2009 VT 111, ¶¶ 25-26, 186 Vt. 487, 987 A.2d 988 (explaining that prior conduct and relationship with victim are relevant to question of whether defendant’s actions would cause reasonable person in victim’s position to be afraid). As charged in conjunction with the specific allegation set forth in the affidavit of probable cause, the jury was not left to ponder if defendant was generally annoying. Instead, the jury was called on to measure the particular conduct of repeatedly seeking to rekin.1e a relationship with his victim, and lamenting her instigation of their separation vis-a-vis the history of his abuse and a family court order to stay away from her. It was properly left to the jury to decide if his annoyance, by persisting that his domestic violence victim ski, shop, dine, attend counseling and return to him, was objectively prohibited as harassment by the *253RFA order. Defendant retained no right to deliberately annoy his domestic abuse victim when ordered not to, and no evidence suggests he was intellectually challenged so as not to appreciate that annoying his victim with persistent requests to return would be prohibited by the commonly understood meaning of harassment. See State v. Danaher, 174 Vt. 591, 593-94, 819 A.2d 691, 695 (2002) (mem.) (holding due process is satisfied where ordinary language of probation condition would put reasonable person on notice of conduct prohibited).

¶ 47. What the majority misstates as the holding of State v. Goyette, 166 Vt. 299, 691 A.2d 1064 (1997), is no more than dicta that fail to compel the majority’s result. Defendant and the majority liken this case to Goyette, where the trial court’s charge was determined erroneous by defining harassment as “repeated acts which trouble, worry, torment, disturb or threaten another (emphasis added)” but then instructing that the jury could convict if it unanimously found the defendant committed but one of six alleged acts. Id. at 303, 691 A.2d at 1067 (quotations omitted). This Court reversed on appeal, but not, as suggested by the majority, because of an overbroad definition of harassment, ante, ¶ 21, but because of plain error in the instruction allowing a conviction based on a single act, rather than the repeated acts required for the offense. Goyette, 166 Vt. at 303, 691 A.2d at 1067. No such error occurred here. Although unnecessary to its holding, the Court added that the breadth of the harassment definition was reversible error as potentially crimin.1izing “virtually any behavior [by the defendant] that bothered the complainant” during an acrimonious divorce. Id. at 304, 691 A.2d at 1067. Defendant and the majority contend that the court’s instruction here was similarly overbroad because it allowed the jury to convict on irritating or annoying behavior that is less than criminal “harassment” elsewhere defined by the Legislature in the unrelated criminal antistalking statute.9

¶ 48. The Goyette passage on overbreadth, cited by defendant and the majority, is not binding and is not persuasive. Contrary to *254the majority’s characterization, ante, ¶ 23, there was no question left open in Goyette, because it is black letter law that an instruction contradictory to the necessary elements of an offense — like allowing a single instance to suffice for the necessary multiple instances — is reversible error. The Goyette Court’s comments on overbreadth were gratuitous, extraneous to its reversal for failure to instruct on the element of repetitive misconduct, and devoid of plain-error analysis. The language relied on by the majority merely assumed the instruction would allow conviction for harassment based on any domestic disagreement whatsoever. It does not explain why the State’s particularized charge and evidence of defendant’s insults to complainant, criticism of her love life, unwanted and uninvited interference with her parental rights, and his threat to kill her, Goyette, 166 Vt. at 302-03, 691 A.2d at 1067, would not suffice for a violation of an RFA order’s prohibition against harassment. Whatever unspecified and uncharged “disagreement between the parties” imagined as overbroad in the second part of Goyette, id. at 303, 691 A.2d at 1067, it was not an issue in that case, and the Court’s supposed disposition on that ground is immaterial, dicta, and not precedential.

¶ 49. 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 jury here was not, as feared by the majority, asked to judge if defendant was generally annoying and irritating, but to determine if his unrequited texts of love and desire for physical proximity, over and over again, to a victim of his violence who explicitly did not want such contact, was annoying harassment prohibited by the RFA order. If defendant repeatedly texted his domestic violence victim “wish wuz with u 2” and “luv u” once, twice or thrice daily, after being served with a stay-away and no-harassment RFA order, would it not be objectively annoying to the point of harassment? The majority says “no,” while the jury said “guilty.” Given the evidence and the real circumstances presented by the State in this case, the jury’s *255verdict was supported, and the majority’s conclusion to the contrary is not.

¶ 50. Left for discussion, then, is the majority’s perception of defendant’s insistent professions of need, “luv,” longing and fixation on reunification as insufficiently concerning to harass complainant, a victim of his past and threatened future domestic abuse and injury. Omitted from the majority’s equation is that defendant was not just a disaffected former boyfriend, but was, boiled down to blunt terms, a proven enemy to her physical well-being. The jury could consider that defendant was dangerous enough that the RFA court found that he presented a “danger of further abuse” and “a credible threat to [complainant’s] physical safety.” Knowing contact was unwanted, and his messaging unwelcomed, defendant insisted day after day after day in urging complainant to return to him. While, as the majority correctly notes, none of his texts were profane, explicitly threatening or violent, defendant texted complainant as though there was no history of abuse, no risk to complainant, and as if it was she who was responsible for their separation.

¶ 51. It is established, and no surprise, that abused women are most at risk when they leave their abusers. S. Gold, Why Are Victims of Domestic Violence Still Dying at the Hands of Their Abusers? Filling the Gap in State Domestic Violence Gun Laws, 91 Ky. L.J. 935, 940 (2003). Anyone afraid to the' point of taking out an RFA no-contact order against an abuser could rationally be annoyed, irritated, tormented and alarmed by the abuser’s refusal to accept the end of their relationship or credit the victim’s explicit desire not to be with him, and the abuser’s unabashed persistence in seeking to be with the victim again while pretending nothing was wrong between them but her RFA order. It is also just as likely from the evidence that, as complainant’s abuser, defendant appreciated that his deliberate, persistent and unwanted attentions would be annoying to the point of being prohibited by the order as harassment. All of this was evinced by the jury’s unanimous con.1usion that a reasonable person in complainant’s situation would have found defendant’s actions harassing. Literature and cinema, like real life reflected by this defendant’s actions, are replete with serial ruffians who are neither profane nor *256expressly threatening,10 but the majority offers no particular explanation on this record —. aside from defendant’s ostensible politeness — of why a person in complainant’s circumstance would not feel harassed by the unrelenting and unwanted attention of her assaulter.11

¶ 52. The stalking statute invoked by the majority is inapposite. Importation of the stalking definition of harassment, not called for by the Legislature and previously rejected by this Court in Goyette, is unnecessary to put an RFA defendant on notice as to what is prohibited. The family court is authorized to issue orders against domestic abuse and, by plain implication, against harassing conduct by household members. See 15 V.S.A. § 1103(c)(1) (authorizing the court to “make such orders as it deems necessary to protect the plaintiff’); Goyette, 166 Vt. at 302, 691 A.2d at 1066 (upholding validity of a no-harassment condition as not “beyond the scope of the conduct the abuse-prevention statute seeks to deter”). The Goyette Court also declined an invitation to limit the definition of harassment in RFA orders by adding emotional distress and lack-of-legitimate-purpose elements from the criminal stalking statute because a “definition of harassment could conceivably vary depending on the circumstances of individual [RFA] cases.” Id. at 304, 691 A.2d at 1067.

¶ 53. Grafting an unnecessarily narrow and foreign statutory stalking definition to the no-harassment condition in the RFA order is at odds with the order’s intent and contravenes the general purpose of the abuse-prevention statute. Predicated on abuse, RFA orders are designed to prevent further abuse. In setting the bounds of such an order, the court is not limited to preventing already illegal conduct, but can prohibit “otherwise legitimate conduct” that can be harassing in an abusive relation*257ship. Id. at 302, 691 A.2d at 1066. Accordingly, this Court has confirmed that the RFA court’s authority extends to restraining an abuser’s liberty to engage in harassment beyond the more strict definitions outlined in the anti-stalking statute. Id. at 303-04, 691 A.2d at 1067; see also Hinchliffe, 2009 VT 111, ¶ 25 (explaining that context of past events important to determining whether victim had an objectively reasonable fear of bodily injury from defendant’s actions).

¶ 54. The RFA order as applied in this case does not, as posited by the majority, need a narrower, “best available” redefinition of harassment. Ante, ¶ 31. Protective orders need not anticipate and specifically prohibit each and every tactic within the ingenuity of abusers to deliberately annoy and harass their victims. Common sense and a jury are equipped to judge that various behaviors under particular surrounding circumstances are, or are not, objectively harassing. For example, an ordinarily celebratory bouquet of lilies can be reasonably expected to presage a funeral when sent by one who beats and threatens to kill you; just as a teddy-gram can obviously trigger discomfort if one has been suffocated by the sender with a stuffed animal. Whether such abusive effects are intended or reasonably expected are well within the objective experience of both an abuser and a jury.

¶ 55. The majority’s urge to otherwise limit the meaning of harassment is equally unfounded. Harassment, in its ordinary sense, is not necessarily threatening. Contrary to the majority’s reading, ante, ¶ 27, the order that defendant not “threaten or harass” complainant expressly indicates two different kinds of misconduct and that both were prohibited. (Emphasis added.) The stalking statute’s specialized definition of harassment, some one-hundred chapters removed from and not in pari materia to the RFA statutory scheme, is far from the commonly understood meaning of the term. Cf., e.g., Webster’s New Collegiate Dictionary 517 (1981) (defining harass as “to annoy persistently”); Merriam-Webster Online Dictionary, http://www.merriamwebster.com/dictionary/harass (defining harass as “(1) to annoy persisten.1y (2) to create an unpleasant or hostile situation for especially by uninvited and unwelcome verbal or physical conduct”). Importation of the criminal stalking standards is also plainly at odds with the RFA purpose to deter future abuse by prohibiting “otherwise legitimate conduct.” Goyette, 166 Vt. at 302, 691 A.2d at 1066. Plaintiff was entitled to protection against *258annoyance directly arising from her abuse by defendant. Moreover, the majority’s narrow redefinition of harassment to require a threat of rape, kidnapping, injury or death, 13 V.S.A. § 1061(4), would exclude telephoning a victim repeatedly at 3:00 in the morning or disseminating intimate photographs of a victim, as well as breaking windows, cutting cables and slashing tires — not uncommon responses to RFA orders.

¶ 56. The rule of lenity is no impediment to the State’s charge or the sufficiency of the trial court’s instruction because there was no ambiguity in the criminal statute to 'resolve. The criminal statute is clear, providing in pertinent part that a “person who commits an act prohibited by a court . . . after the person has been served notice of the contents of the [RFA] order . . . shall be imprisoned.” 13 V.S.A. § 1030(a). The court’s order that defendant “shall not threaten or harass plaintiff’ informed him that threats and harassment are separate acts and that harassment need not include a threat. The notion of annoyance being actionable as harassment was limited by the particular context as applied to an abuser ceaselessly soliciting his victim against her wishes. Thus, the court instructed that the jury had to find a persistent and intentional action directed at complainant, and that it was objectively reasonable for her to view such messaging as harassment. The jury’s determination, in accordance with the trial court’s instruction, that defendant’s intentional course of conduct “would cause a reasonable person to be annoyed, irritated, tormented or alarmed” confirms there was neither objective ambiguity in the order, nor any objective risk of confusion on defendant’s part to warrant the majority’s lenity in construing the RFA order.12

¶ 57. It was settled, when the instruction was given, that no fixed definition of harassment was mandated and that harassment could vary according to the circumstances of the RFA case. See Goyette, 166 Vt. at 304, 691 A.2d at 1067 (acknowledging that definition of harassment can vary depending on facts of particular case). Neither the law nor the facts here suggested that harassment must exclude persistent, deliberate and objectively annoying conduct directed against domestic-abuse victims, let alone be *259limited by the extraneous stalking statute. Neither law nor logic limited actionable harassment to only threats of physical harm or kidnapping as discovered by the majority today. What the majority sees as error was not error and, even assuming error, it was not at all obvious or glaring, and so was not plain error. The record reflects no miscarriage of justice by way of the instructions and no prejudice to defendant when the definition is considered in the context of his domestic violence as evident to the jury. Without plain error, the conviction cannot be reversed and should be affirmed.

¶ 58. I am authorized to state that Chief Justice Reiber joins this dissent.

Even if the timing of the conversations in which complainant asked defendant to stop constantly texting was not in evidence, as noted by the majority, ante, ¶ 11, the clear inference from the fact of more than one such call is that defendant persisted after complainant’s first protest. Moreover, even without a protest, the underlying circumstances of physical abuse, threat of harm and the RFA order put a batterer on notice, as the jury essentially determined, that continued, repetitive and unanswered romantic solicitations would be received as harassment by the victim of his domestic abuse.

The instructions also undermine defendant’s efforts to analogize his case to instances where courts have found criminal prohibitions on annoying behavior overbroad in violation of the First Amendment. See, e.g., People v. Klick, 362 N.E.2d 329, 330-32 (Ill. 1977) (concluding statute, which prohibited making one annoying phone call, violated First and Fourteenth Amendments because it attempted to prohibit protected speech). As previously held, there is “no First Amendment right to inflict unwanted and harassing contact on another person.” State v. Mott, 166 Vt. 188, 194, 692 A.2d 360, 365 (1997). Unlike Klick, the condition here in no way proscribed single instances of protected speech, but, as applied in this particular case, prohibited an intentional and persistent course of objectively harassing conduct directed towards a prevailing RFA plaintiff.

The statute, 13 V.S.A. § 1062, outlaws stalking, which can consist, in pertinent part, of harassment defined as “actions directed at a specific person, or a member of a person’s family, which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death, in.1uding but not limited to verbal threats, written, telephonic, or other electronically communicated threats, vandalism, or physical contact without consent.” Id. § 1061(4) (emphasis added).

Robert Mitchum’s portrayal of the smarmy, but dangerous, Harry Powell in “Night of the Hunter” (Paul Gregory Productions, 1955) is exemplary, with the film adapted from Davis Grubb’s 1953 best-selling novel by the same name based, in turn, on actual domestic-violence incidents of gothic proportion.

Further, and contrary to defendant’s assertion, the condition was not invalid even if he was not personally aware his conduct would violate the order. In a prosecution for violation of an RFA, the -State need “prove only that defendant violated the order after it was properly served upon him.” State v. Crown, 169 Vt. 547, 549, 726 A.2d 493, 495 (1999) (mem.). The State need not prove defendant subjectively knew his conduct violated the order. Id. (declining to hold that a charge of first offense violation of an RFA under 13 V.S.A. § 1030(a) calls for proof that defendant understood the requirements of the abuse-prevention order).

If the jury “struggled” with the definition supplied by the court, as argued by the majority, ante, ¶ 33, its puzzlement was unanimously resolved within minutes of the court’s reiteration, without elaboration, that the common definition would govern.