State v. Harwood

238 A.3d 661

STATE of Vermont

v.Michael HARWOOD

No. 19-034

Supreme Court of Vermont.

December Term, 2019

July 24, 2020

Ian C. Sullivan, Chief Deputy State's Attorney, and Victoria Santry, Law Clerk, Rutland, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.

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

CARROLL, J.

¶ 1. Defendant Michael Harwood appeals from the trial court's decision concluding that he violated Condition N of his probation, which prohibited "violent or threatening behavior," by verbally threatening a corrections officer. On appeal, defendant argues that the trial court erred because threatening behavior requires some accompanying physical conduct. If verbal statements qualify as threatening behavior, defendant alternatively argues that he did not receive adequate notice that his verbal statements could result in a violation of probation. We affirm.

I. Factual and Procedural Background

¶ 2. The record indicates the following. On July 28, 2017, defendant was charged by information with one count of aggravated domestic assault, 13 V.S.A. § 1043(a)(2), and two counts of disturbing the peace by phone, 13 V.S.A. § 1027(a). An affidavit accompanying the information alleged that on the evening of July 21, 2017, defendant saw his ex-girlfriend in Poultney, Vermont outside a convenience store. Defendant entered his ex-girlfriend's car and "told her to drive around back because he needed to get his coat." Although defendant's ex-girlfriend drove defendant around back so he could grab his belongings, she refused to take defendant anywhere else. After she refused again, defendant, while holding a large folding knife in front of him, told her that he was going to hurt her if she did not drive him to Arlington, Vermont.

¶ 3. The affidavit further alleged that on July 24, 2017, defendant's ex-girlfriend reported receiving several threatening and disturbing messages from defendant via Facebook Messenger.¹ Defendant sent a message telling his ex-girlfriend that "I promise you your family has never seen the storm that's about to come, ... you did this to me, dead or in jail are my options I have, I have nothing because of you." Defendant also sent a message saying he "almost got shot the other night," he "could have died," and if he did, it would have been his ex-girlfriend's fault because she put him in the situation. On July 27, 2017, defendant's ex-girlfriend reported receiving additional threatening messages, including several that had gun emojis.²

¶ 4. Based on the foregoing, on May 16, 2018, defendant pleaded guilty to first-degree aggravated domestic assault with a weapon, 13 V.S.A. § 1043(a)(2), for threatening to use a deadly weapon on his ex-girlfriend. Defendant received a sentence of eighteen months to six years, all suspended except for one year to serve. As part of the plea agreement, defendant was placed on probation under standard and special conditions and the two counts of disturbing the peace by phone were dismissed. At the plea hearing, the court specifically asked defendant if he understood the conditions that were imposed pursuant to the agreement:

The court: Do you understand that probation conditions would be that you notify your probation officer within forty-eight hours if arrested or given a citation for a new offense, you must not be convicted of another crime, meet with your PO or designee when told to do so. If you change your address or move, you must tell your PO within two days. If you change or lose your job, you must tell your PO within two days.

Upon request and without delay, you must allow your PO to visit you wherever you're staying, and violent or threatening behavior is not allowed at any time.

Do you understand that?

The defendant: Yes.

The court: There will be a condition that you must attend and participate in mental-health counseling if directed to do so and complete it to your PO's satisfaction.

You must allow any treatment or counseling program to tell your probation officer in court about your attendance and participation.

You must obey any curfew as directed.

You must actively participate in violence counseling for anger management and/or domestic violence ....

You may not harass or cause to be harassed the victim, the victim's family, or any prosecution witness.

You shall not contact the victim or victim's family nor enter the victim's home, school, or business without both the permission of your probation officer and the victim's prior written consent filed with your PO, and then only by the terms of the consent.

You have to live in an approved residence and probation shall not withhold approval unless there are legitimate and reasonable concerns that a residence will impact public safety or increase probability of recidivism, and you must submit to electronic monitoring at the direction of your probation officer.

Is that your understanding of the agreement?

The defendant: Yes.

The probation order that issued the same day included the above conditions and provided the following at the end of the order: "I understand these conditions and I agree to follow them. I understand that if I do not follow these conditions, the court may require me to serve my full sentence in jail." Defendant signed the probation order on June 6 while he was incarcerated at Southern State Correctional Facility.

¶ 5. About a week later, while defendant was in his cell, a corrections officer and a unit supervisor saw defendant squirting water out under his cell door. The corrections officer first spoke with defendant and warned him the facility would not tolerate this behavior. Defendant then became "verbally assaultive." The unit supervisor reminded defendant that he could violate his probation if he continued to engage in this behavior. Defendant responded flippantly and loudly yelled several expletives at the supervisor. The corrections officer—face-to-face with defendant, though separated by defendant's cell door—reminded him that this comment could result in disciplinary reports, which could extend his incarceration. Defendant replied that he would stab someone if he was held past his release date and threatened that he would have his gang go to the corrections officer's house and they would "get it done just like they do in New York." Defendant said that he could easily find the officer after his release because corrections officers are "dumb" and put their full names on disciplinary reports. The corrections officer considered defendant's statements a threat and was concerned defendant would physically execute his verbal threat upon his release from the facility.

¶ 6. Based on this incident, defendant's probation officer filed a Probation Violation Complaint alleging that defendant violated Condition N by threatening the corrections officer. At the merits hearing on the probation violation, the State, citing State v. Johnstone, 2013 VT 57, 194 Vt. 230, 75 A.3d 642, argued that defendant's statements constituted a threat and "he was on sufficient notice that saying things like he would stab someone if he had to serve for six years ... could be viewed as threatening." On the other hand, defendant, citing State v. Schenk, 2018 VT 45, 207 Vt. 423, 190 A.3d 820, argued that his behavior could not qualify as threatening because threatening behavior requires accompanying conduct.

¶ 7. In a written order issued a few days later, the trial court determined that defendant violated Condition N. The court concluded that defendant was on notice of what behaviors could violate Condition N because he received, reviewed, and signaled that he understood that he was subject to the condition. The trial court also concluded that defendant's verbal statements qualified as threatening because the defendant intended to put the corrections officer in fear of harm and/or to convey a message that he intended to harm the corrections officer upon his release from prison. The court found that defendant used a loud tone of voice, faced the corrections officer on the other side of the cell door, and intentionally directed a verbal threat to him. Additionally, the court observed that defendant made the threat after the corrections officer and the unit supervisor warned him about the potential consequences of his behavior.

¶ 8. Although the court acknowledged that, in Schenk, we defined threatening behavior under Vermont's disorderly-conduct statute to require accompanying conduct, the court concluded that Schenk did not apply in the probation context. The court reasoned that Schenk recognized the disorderly-conduct statute and probation conditions as two "distinct contexts" for the definition of threatening behavior. The court also explained that Schenk adopted a "narrowed" definition of "threatening behavior" in part to avoid constitutional infirmity under the First Amendment. Those same First Amendment concerns, the court explained, do not apply in probation cases because probation conditions may lawfully impact a probationer's First Amendment rights. Based on these legal conclusions, the trial court revoked defendant's probation and imposed the underlying sentence of eighteen months to six years.

¶ 9. On appeal, defendant argues the trial court erred in holding that his verbal statements qualified as threatening behavior. Citing Schenk, defendant argues that "threatening behavior" requires "physical force or physical conduct which is immediately likely to produce the use of such force." Schenk, 2018 VT 45, ¶ 32, 207 Vt. 423, 190 A.3d 820. Alternatively, defendant argues that he was not on notice that verbal statements could constitute threatening behavior.

¶ 10. We conclude that defendant's verbal statements to the corrections officer qualified as threatening behavior. We also conclude that defendant was on sufficient notice that verbal statements could qualify as threatening behavior. W...