Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-096

                                     SEPTEMBER TERM, 2015

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Windham Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Millard Waite                                         }    DOCKET NO. 452-4-14 Wmcr

                                                            Trial Judge: David Suntag

                          In the above-entitled cause, the Clerk will enter:

        Defendant appeals from a condition of probation included in his sentence following a
guilty plea to one felony count of lewd and lascivious behavior and one misdemeanor count of
prohibited acts. He contends the trial court abused its discretion by imposing a probation
condition precluding contact with his non-victim grandchildren without the approval of his
probation officer, therapist, and any assigned child protection worker. We affirm.

        In April 2014, defendant was charged with two felony counts of lewd and lascivious
conduct with a child. The charges were based on a report by his then fourteen-year old
granddaughter E.W. that defendant had sexually abused her. In a subsequent interview with a
child protection worker, E.W. described a number of occasions when defendant, while
babysitting for her and her siblings, would lie on a couch with her under a blanket and touch her
vagina. She also reported instances of inappropriate touching at family gatherings at a summer
cottage. These incidents occurred when she was between seven and thirteen years old. E.W.’s
younger sister, M.W., was also interviewed and reported instances in which defendant touched
her chest and thighs. Both girls stated that the molestations occurred on some occasions when
other family members were nearby.

        In February 2015, defendant pled guilty, pursuant to a plea agreement, to one count of
lewd and lascivious conduct, in violation of 13 V.S.A. § 2601, and one count of misdemeanor
prohibited acts, in violation of 13 V.S.A. § 2632(a)(8). Defendant acknowledged at the change-
of-plea hearing that he had “intentionally touched E.W. in a sexual way on her chest, leg, and
groin areas” for the purpose of gratifying his own sexual desires, and that he had “intentionally
touched M.W. in a lewd way . . . for a sexual purpose on her leg,” and he further acknowledged
that there were family members present when the acts occurred. The plea agreement called for a
four-year deferred sentence on the felony conviction, an eleven-to-twelve month suspended
sentence on the misdemeanor, and probation.

       Defendant has four other minor grandchildren. Two are the children of victims’ father’s
brother and two the children of the victims’ father’s sister. The plea agreement preserved
defendant’s right to contest the State’s recommended probation condition restricting his contact
with his non-victim grandchildren. The probation condition in question provided: “You may not
have contact with your non-victim grandchildren unless approved by your therapist, child
protection worker and Supervising Officer.” At the change-of-plea hearing, defendant argued in
support of allowing contact with the non-victim grandchildren solely under the supervision of
their parents. He claimed that a letter from his therapist supported this arrangement, but the
letter was not introduced into evidence. He also asserted that the parents were qualified to
supervise, that he had admitted his misconduct and shown remorse, and—citing an assessment in
the PSI that he was a low risk to re-offend—claimed that no additional restrictions were
necessary for rehabilitation purposes or to protect the public. The State maintained that
supervision by the parents was inadequate in light of the circumstances of the offenses—other
family members had been nearby when the crimes occurred—and that the parents of the other
children had not believed the victims, which caused a bitter and deep divide in the family.

        In ruling on the disputed condition, the trial court observed that it had seldom seen a
more serious “fracture of a family” caused by “interfamilial” child abuse, noted that the
Department of Corrections was ultimately “responsible for safe supervision and contact” with the
grandchildren, and concluded that DOC standards and supervision should govern defendant’s
contact with all the grandchildren. Accordingly, the court imposed the condition requested by
the State. This appeal followed.

         Defendant contends the trial court abused its discretion by imposing the condition
restricting contact with his non-victim grandchildren. “[W]e review the imposition of particular
probation conditions . . . under an abuse-of-discretion standard, and will uphold the conditions as
long as there is a reasonable basis for the court’s actions.” State v. Putnam, 2015 VT 113, ¶ 44,
___ Vt. ___ (quotation omitted). “The burden of proof is on the party alleging abuse, and that
party must show that the court failed to exercise its discretion or did so for reasons clearly
untenable or to an extent clearly unreasonable.” Id. (quotation omitted).

        For purposes of evaluating the imposition of a condition in a given case, we recently
reaffirmed the principle “that a probation condition that restricts otherwise lawful conduct must
be reasonably related to a defendant’s particular characteristics, including the crime for which
the defendant was convicted.” Id. ¶ 38. We also reaffirmed that, in determining whether the
court acted within its discretion, “we have not required the sentencing court to make specific
findings regarding each condition, but have looked to whether the record supports the court’s
exercise of its discretion.” Id. ¶ 45.

       Assessed in light of these principles, the record here amply supports the court’s decision.
The restriction on contact with defendant’s non-victim minor grandchildren was patently related
to the crimes committed: the sexual abuse of two of his minor grandchildren. See State v.
Whitchurch, 155 Vt. 134, 140 (1990) (upholding probation condition for defendant convicted of
lewd and lascivious contact which restricted contact with other non-victim minors). Although,
as defendant notes, Whitchurch was limited to a facial challenge to the condition, he has not
made any persuasive showing that the facts here fail to support the restriction.

       On the contrary, defendant’s admission to molesting both victims on a number of
occasions over a period of time, with other family members present, amply demonstrates that the
condition requiring consultation with defendant’s therapist and child protection officials, and
DOC approval of the individuals appointed to provide supervision, are reasonably related to the
probation goals of protecting the public and promoting defendant’s rehabilitation. Contrary to

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defendant’s claim, the court was not required to conclude otherwise based solely on the
assessment in the PSI that he was a low risk to reoffend. Rather, the court was free to balance
that assessment against the risk to the other grandchildren and rule in favor of caution.
Defendant’s reliance on his therapist’s letter is misplaced, as the letter was not introduced into
evidence. Finally, the court could reasonably rely on evidence of the family estrangement
caused by the victims’ revelations in rejecting the non-victim children’s parents as suitable
supervisors without DOC supervision and approval. Accordingly, we find no abuse of
discretion, and no basis to disturb the judgment.

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               John A. Dooley, Associate Justice

                                               _______________________________________
                                               Marilyn S. Skoglund, Associate Justice

                                               _______________________________________
                                               Harold E. Eaton, Jr., Associate Justice




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