¶ 18 dissenting. Defendant has engaged in conduct that is undesirable and upsetting to the'minor victim of the sex crime for which he has been convicted and is on probation. On numerous occasions he has placed himself in the position to watch and stare at the victim, on one occasion for more than one hour. During none of these incidents has defendant attempted to touch the victim, to communicate with her, or to seek communication from her.
¶ 19 I agree that probation conditions could have been crafted to prevent defendant’s actions and should have been so crafted. One of the ironies of this case is that the court has now redrafted the conditions to draw very clear lines that prohibit defendant’s actions. However, I cannot agree that the probation conditions that were in effect clearly prohibited defendant’s actions or gave clear notice of what was prohibited. This deficiency is exacerbated by two additional factors: (1) one of the violation holdings — that related to the bus stop incident — *595is not supported by sufficient findings or evidence; and (2) the initial probation conditions and actions of the probation officer made inevitable that there would be “contact,” as defined by the trial court, between defendant and the victim.
¶ 20 The result, I fear, is that we are punishing defendant not because he violated the conditions imposed upon him, but because he violated the conditions that hindsight shows should have been imposed upon him. I cannot conclude that this result is consistent with the fundamental fairness that should pervade a decision to incarcerate a probationer and, therefore, dissent.
¶21 The complaint that started this case contained a one paragraph affidavit of the probation officer, reporting a statement of the victim that defendant was watching her and would not leave the Corbett barn immediately when he saw her. The victim said that defendant was “making her feel uncomfortable with his presence.” The complaint did not suggest that the violation consisted of defendant placing himself in the “proximity” of the victim. Nor was there any allegation that •defendant tried to communicate with the victim or touch her.
¶ 22 In finding “contact” in two of the five incidents reported by the probation officer, the trial court relied upon an alternative definition found in one dictionary. The definition is: “b. The state or condition of touching or of immediate proximity.” As defendant pointed out, the dictionary definitions of “contact” vary, but only a few go beyond actual touching — that is, physical contact •— or communication; neither of which is found here. See 3 The Oxford English Dictionary 805-06 (2d ed. 1989); Webster’s Third New International Dictionary 490 (1965); The American Heritage Dictionary 395 (4th ed. 2000). We do not give fair notice of the obligations created by probation conditions by adopting a meaning that the probationer can ascertain only if he has the right dictionary.3
¶ 23 While the definition adopted by the trial court is debatable, I think the next leap of logic is not. The trial court went on to drop the modifier “immediate” and held that presence in proximity to the victim is sufficient. In this logical leap, the notion that proximity can be so close as to be the functional equivalent of touching is lost.
¶ 24 There is still a third logical leap in the finding of a breach of the condition in the bus stop incident. The State failed to show how close to the victim defendant came when he greeted his children. The evidence was merely that defendant stopped his car and called to his children to come to the car. The majority skates over this with the observation that “the lower court properly inferred essential facts from its factual findings” because *596defendant came “near his daughters at their bus stop while he knew G.D. was also present.” Even if I agreed that a court can infer essential facts without evidence, I cannot accept the slow loosening of the definition of contact in which physical contact goes to immediate proximity and then to proximity and finally to being near. Oddly, in response to one of the other charges, the trial court found that being fifty feet from the victim was not sufficient proximity to be a violation of the condition. Nothing in the testimony shows that defendant and the victim were within fifty feet of each other at the bus stop.
¶ 25 To be sure, I do not believe that the trial court can infer essential facts with no evidence to support the inference. Our precedents require that the court’s conclusions be supported by its findings and by the evidence. See State v. Austin, 165 Vt. 389, 397, 685 A.2d 1076, 1082 (1996). The case on which the majority relies deals with mental elements that are mixed questions of fact and law in a civil case. Plant v. Ahlberg, 104 Vt. 16, 19, 156 A. 535, 536 (1931), is a deceit case in which the trial court found that the defendant defrauded the plaintiff in the sale of a truck without finding specifically that the defendant intended to deceive the plaintiff or that the plaintiff relied on the defendant’s misrepresentation in deciding to buy the truck. This Court held that these elements of the tort could be inferred from the facts found. Id. The important point about Plant is that mental elements almost always have to be inferred from subsidiary facts, and the evidence existed to make that inference. Here, the element of physical distance, made an element by the court’s construction of “contact,” cannot normally be inferred from other facts, and, in any event, no subsidiary facts or evidence from which to draw such an inference are present in this case.
¶26 I would reverse the decision to revoke probation based on the bus stop incident. Since we cannot know what sentence would have been imposed if the court had found one, but not two, violations of probation conditions, this reversal alone would require a remand for resentencing. See State v. Higgins, 147 Vt. 506, 508, 519 A.2d 1164, 1166 (1986) (per curiam).
¶27 I would not, however, remand because I would reverse both probation violation conclusions. I acknowledge that the validity of the second violation determination, based on the Corbett residence incident, is closer, primarily because of the instructions of the probation officer and the evidence of specific distance, but I still do not believe the violation could be found on the court’s theory.
¶ 28 First, the court never found that defendant violated the specific instructions of the probation officer, probably because they were phrased as advice and not as a command. Thus, the majority has relied upon facts not found by the trial court.4 In fact, the trial court’s decision rests on the same proximity theory as employed in finding a violation for the bus stop incident. As stated above, I cannot accept that theory.
¶ 29 Second, a probation officer can give direction within the contours of the court’s probation condition but cannot create a condition different from that imposed by the court. See State v. Moses, *597159 Vt. 294, 300, 618 A.2d 478, 481 (1992). The court imposed a prohibition on contact, not a distance or presence restriction, and the probation officer had no power to amend that restriction.
¶ 30 Third, and most important, the probation officer’s direction was ambiguous, if not contradictory. The exact phrasing of the language relied upon by the majority is: “he shouldn’t be down there when she is down there.” (Emphasis supplied.) This is not the language of command, as asserted by the majority. I suspect, as I stated above, that the phrasing of the statement is why the trial court never mentioned it in its findings.
¶ 31 I say “contradictory” because the probation officer also later authorized defendant to move back into his house nearby to the Corbett residence5 and allowed him to board his horse in the Corbett pasture.6 Given these actions and the fact that the victim’s good friend was a Corbett daughter, it was almost certain that defendant and the victim would come in proximity with each other. Thus, if presence in proximity of the victim is the violation, the actions of the probation officer virtually insured that the violation would occur.
¶ 32 The trial court's approach in this case is reminiscent of the trial court’s approach in State v. Goyette, 166 Vt. 299, 691 A.2d 1064 (1997), in which the defendant was convicted by jury of violating an abuse prevention order by harassment of the victim under a definition of “harassment” so broad that “virtually any conduct by defendant causing disagreement between the parties or concern on the part of the complainant could have resulted in defendant’s criminal liability.” Id. at 303, 691 A.2d at 1067. We reversed because the breadth of the charge went beyond any reasonable definition of harassment. Id. at 304, 691 A.2d at 1067. Here, the term “contact” has been defined unreasonably broadly to cover conduct because it bothers the victim. For the same reason that we reversed in Goyette we should do so here.
¶ 33 In summary, when we are dealing with the liberty of the probationer, I believe we must insist that probation conditions contain the kind of bright line that enables the probationer to know precisely what is expected of him. Ironically, the trial court recognized this in resentencing defendant to jail time and new probation conditions. Those conditions provide:
22. Defendant is not to place himself intentionally within 200 feet of G.D. or remain within 200 feet when her presence becomes known. Anytime defendant is notified of G.D. visiting the Corbett residence or observing G.D. at the Corbetts, defendant is not to place himself or remain in view of G.D. or of Corbett’s residence. When driving on Russin Road, defendant is to maintain an appropriate *598speed and not take special notice of what is happening on Corbetts property.
23. “Contact” includes physical proximity and any form of communication.
If the original sentence had contained comparable conditions, I doubt this case would have arisen. The defendant is entitled to predictable restrictions, but did not receive them here.
¶ 34 I dissent.
The majority suggests we adopted this definition in State v. Leggett, 167 Vt. 438, 709 A.2d 491 (1997), a case in which the defendant’s probation condition prohibited any contact with a child under sixteen years of age and in which the evidence showed the defendant was residing with, or was frequently in the home of, a woman and her seven-year-old daughter who called him uncle. The definition of “contact” was not raised in Leggett, probably because the defendant would find it hard to argue that he was frequently present in the house with the child, acting as a relative, but made no contact with the child, whatever the definition of the term. The comparison to Leggett is, if anything, a demonstration of how elastic the definition of “contact” can be to fit the facts, exactly my concern. The suggestion of the majority is that continuous presence in the home with a child is the same “contact” as presence in a car by a bus stop some unknown distance from the victim who is standing outside.
Although it is not determinative, I also disagree with the finding of the trial court, albeit stated in the court’s conclusions, and relied upon by the majority, that Kaitlyn Corbett “asked [defendant] ... to leave.” The finding is clearly erroneous. Both the victim and Kaitlyn testified that Kaitlyn told defendant that his presence was unnecessary to help retrieve her horse so he could leave. Neither asked him or told him to leave. The fact that defense counsel did not dispute this finding does not create evidence where there is none.
According to the probation officer, defendant was initially prohibited from overnight presence at his home. During this time, he was allowed to be present at any time during the day, and he routinely stayed throughout the day at his home. On June 1, after both the bus stop and Corbett residence incidents, the probation officer allowed defendant to return to overnight residence at his home. Apparently, she knew of both incidents when she removed the restriction on overnight presence.
At the same time as she allowed defendant to resume overnight residence at his home, she prohibited defendant from being on the Corbett property without the consent of the Corbetts, which apparently never was given. The evidence suggests that in response to this restriction defendant moved his horses to an adjoining pasture owned by his brother.