2013 VT 83


In re Christopher Hoch (2012-330)
 
2013 VT 83
 
[Filed 13-Sep-2013]
 
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@state.vt.us 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.
 
 

2013 VT 83

 

No. 2012-330

 

In re Christopher Hoch


Supreme Court


 


 


 


On Appeal from


 


Superior Court, Washington
  Unit,


 


Civil Division


 


 


 


March Term, 2013


 


 


 


 


Michael
  S. Kupersmith, J.


 

Robert L. Sussman of Blodgett, Watts, Volk & Sussman,
P.C., Burlington, for 
  Petitioner-Appellee/Cross-Appellant.
 
William H. Sorrell, Attorney General, and Ultan Doyle,
Assistant Attorney General, Montpelier,
  for
Respondent-Appellant/Cross-Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
SKOGLUND, J.   In this post-conviction-relief (PCR)
action, both petitioner and the State appeal from two March 2012 orders in
which the superior court, civil division, vacated petitioner’s aggravated
stalking conviction after granting each party summary judgment on different
aspects of the PCR petition.  We reverse the court’s decisions granting
petitioner summary judgment and reinstating the aggravated stalking conviction,
affirm the court’s grant of summary judgment to the State on petitioner’s
ineffective-assistance-of-counsel claim, and dismiss petitioner’s PCR petition.
¶ 2.            
In April 2004, petitioner was charged with aggravated stalking based on
an incident in which he entered the curtilage of a private residence and
surreptitiously watched and photographed a thirteen-year-old girl through her
bedroom window and other parts of the house.  Following petitioner’s
arrest in the stalking incident, police obtained a warrant to search his
house.  The resulting search led to petitioner being charged in July 2004
with five counts of possession of child pornography.
¶ 3.            
In December 2004, petitioner filed a motion to dismiss the aggravated
stalking charge on the grounds that the State could not make out a prima facie
case as to every element of the charge.  The trial court denied the motion, concluding in relevant part that the element in the
stalking statute requiring the perpetrator’s conduct to cause the victim fear
or emotional distress did not require the conduct and the fear or emotional
distress to be contemporaneous.  In January 2005, petitioner filed a
motion to suppress evidence found in his car, home, and camera, which the court
denied.
¶ 4.            
In June 2005, petitioner pled guilty to one count of aggravated stalking
and two counts of child pornography.  He received a sentence of three to
five years, all suspended but thirty days, to be followed by thirty days of
work crew.  In April 2008, petitioner was charged with a violation of the
terms of his probationary sentence and, after a hearing, his probation was
revoked.
¶ 5.            
In August 2009, petitioner filed a pro se PCR petition. 
Subsequently, he was appointed two different attorneys, who filed amended
petitions in September 2009 and July 2010, respectively.  In the latter
amended petition, petitioner argued that there was no factual basis for the
trial court to accept his guilty plea to the aggravated stalking charge because
any fear that the victim felt as the result of his conduct was not
contemporaneous with the conduct.  He also argued that his trial counsel
was ineffective because he: (1) failed to challenge the justification for the
initial stop that led to his arrest; (2) failed to request a hearing on his
motion to suppress evidence obtained pursuant to an allegedly defective search
warrant; (3) allowed petitioner to plead guilty to multiple counts of child
pornography; (4) failed to preserve a right to appeal with his plea; and (5)
failed to engage an expert to examine how his camera operated.
¶ 6.            
In March 2011, the State filed a motion for summary judgment, arguing
that there was a factual basis for petitioner’s guilty plea on the aggravated
stalking charge and that petitioner’s trial counsel was not ineffective. 
In two March 2012 orders, the superior court granted the State’s motion with
respect to four of the five claims of ineffective assistance of counsel and
scheduled a hearing on petitioner’s claim that counsel was ineffective for
failing to seek a hearing on his motion to suppress.  The court denied the
State’s motion for summary judgment on whether there had been a factual basis
to his plea on the aggravated stalking charge.  The court then found no
factual basis for the aggravated stalking charge and vacated the same.  In
making the latter determination, the court cited the absence of any evidence
that the victim was aware of petitioner’s presence and thus experienced fear or
distress at the time petitioner engaged in the conduct that led to the stalking
charge.  In August 2012, after holding a hearing on the surviving
ineffective-assistance-of-counsel claim, the court granted petitioner’s PCR
petition, incorporating by reference the March orders into its final judgment.
¶ 7.            
The State appeals, arguing that the victim’s fear did not have to be
contemporaneous with petitioner’s stalking conduct, and thus the superior court
erred in concluding that there was no factual basis to the aggravated stalking
charge.  In his cross-appeal, petitioner argues that the superior court
erred in granting the State summary judgment on the issue of whether there was
a lawful initial investigatory detention of petitioner during the incident that
led to the stalking charge.
¶ 8.            
We first examine the State’s claim of error.  At the time
petitioner engaged in the conduct that led to the aggravated stalking charge,
stalking was defined, in relevant part, as a course of conduct consisting of
following, lying in wait, or harassing, that “causes the person to fear for his
or her physical safety or causes the person substantial emotional
distress.”  13 V.S.A. § 1061(1)(B)
(1993).  The current version, as amended in 2006, defines stalking as a
course of conduct described above that “would cause a reasonable person to fear
for his or her physical safety or would cause a reasonable person substantial
emotional distress.”  13 V.S.A. § 1061(1)(B).
¶ 9.            
The superior court appears to have concluded that the Legislature
amended the statute to substitute an objective standard for a subjective
standard with respect to the element requiring that the victim experience fear
or emotional distress, thereby no longer requiring that a particular victim’s
fear or distress be contemporaneous with the perpetrator’s conduct.  In
other words, the court presumed that the former statute governing this case
required that the unlawful conduct and the resulting fear occur
contemporaneously.  Read in this manner, petitioner could not have been
convicted under the former statute because of the absence of any evidence that
the conduct and fear were contemporaneous.
¶ 10.        
We fail to see how the legislative change to the statute suggests that
the former statute required fear contemporaneous with the charged
conduct.  We agree that the Legislature amended the statute to criminalize
conduct that would make a reasonable person fearful, thereby relieving the
State of the burden of proving that a particular victim actually felt
fear.  See Bott v. Osburn, 2011 UT App 139, ¶ 9, 257 P.3d 1022
(stating that legislature’s deletion of language requiring that defendant’s
conduct actually cause fear or emotional distress “shows a legislative purpose
to eliminate proof of the victim’s actual fear or actual distress as an element
of stalking”).  But the new language in the statute has no bearing on the
timing of a victim’s fear or emotional distress in relation to the
perpetrator’s conduct.
¶ 11.        
No language in the aggravated stalking statute requires that the
victim’s fear or emotional distress be contemporaneous with the stalking
conduct.  Its terms suggest no such concurrence is required.  For
example, “lying in wait,” defined as “hiding or being concealed for the purpose
of attacking or harming another person,” is a type of stalking conduct in which
the conduct and the fear are unlikely to be contemporaneous because of the
nature of the conduct.  13 V.S.A. § 1061(5). 
Another type of stalking conduct under the statute, “harassing” behavior,
includes “written, telephonic or other electronically communicated threats,”
which often will not result in simultaneous fear or emotional distress.  Id.
§ 1061(4); see People v. Norman, 89 Cal. Rptr. 2d 806, 809-10 (Ct.
App. 1999) (reasoning that stalking statute plainly did not “require a
concurrence of act and reaction,” as demonstrated by fact that stalking could
occur by way of e-mail, “in which event the victim’s fear, on reading the
e-mail, would occur hours or days or weeks after the threat was made”).
¶ 12.        
As the court in Norman stated, the “obvious” conclusion is “that
the Legislature’s failure to include in the statute words that would require
that the cause be contemporaneous with the effect means that that there is no
such requirement.”  Id. at 810. 
Petitioner’s attempts to distinguish Norman are unavailing.  Like
the court in Norman, we find no basis in the stalking statute to require
that the perpetrator’s act and the victim’s fear be contemporaneous.
¶ 13.        
In this case, the victim stated in an affidavit that when she learned
from her brother later the same evening that her father had caught a man
peeping through her bedroom window, she was afraid to sleep in her room, she
feared being home alone, she was still nervous about it, and she had changed
some behaviors as a result of her fears.
¶ 14.        
During the colloquy when petitioner entered his plea to the aggravated
stalking charge, he admitted to sneaking up to the victim’s bedroom window,
following the victim from window to window, and taking photographs of
her.  Although petitioner stated that he did not intend to put anybody in
fear, he acknowledged that he committed an illegal act and that, based upon the
facts stated in the arresting officer’s affidavit, a
jury could have found him guilty of aggravated stalking because he caused the
minor victim to be fearful when she learned of his actions.  In short, the
record reveals that the trial court confirmed at the plea hearing that there
was a factual basis for the plea, as required by V.R.Cr.P. 11(f). 
Because, as determined above, the elements of the charged offense do not
include a requirement that the perpetrator’s conduct and the victim’s fear or
distress be contemporaneous, the superior court erred in vacating the
aggravated stalking conviction.
¶ 15.        
In his cross-appeal, petitioner argues that the superior court erred by
concluding that his trial counsel was not ineffective for failing to file a
motion to suppress based upon the unlawfulness of the petitioner’s initial
detention at the time of his arrest.  Before addressing this issue, it is
helpful to recite the undisputed facts concerning that detention.  The
victim in this case is the daughter of a police officer, who was off duty, at home, in his backyard hot tub at approximately nine o’clock
at night when he observed a man surreptitiously creep up to his daughter’s
bedroom.  The man put his face close to the window for a few seconds and
then temporarily moved towards the end of the house.  The officer/homeowner/father
knew that his daughter was in her bedroom at the time because he had seen her
there minutes earlier before going outside.  When the officer left the hot
tub and went into the house to get changed, he saw the man walk away from the
house and then back to his daughter’s bedroom window on two more
occasions.  Through these observations, the officer was able to note the
man’s appearance and attire.
¶ 16.        
As the officer went outside to confront the intruder, he heard a vehicle
door close and an engine start.  The vehicle, which had been parked just
beyond the driveway of the officer’s home, went up the dead-end street, turned
around, and headed back toward the residence.  As the vehicle approached
his residence, the officer stepped into the street and motioned for the driver
to stop.  The driver stopped and rolled down his window.  Asked what
he was doing, the driver stated that he was looking for a dog that he had hit
with his car.  When the officer told the driver that he had seen him
peering through his daughter’s bedroom window, the driver maintained his story
that he had gone behind the house to look for the dog.
¶ 17.        
At that point, the officer informed the driver that he was a police
officer and asked the driver for identification.  The driver handed the
officer a driver’s license identifying him as petitioner.  Knowing that
his wife had called the police, the officer asked petitioner to get out of his
vehicle to await their arrival.  Petitioner complied at first but then
attempted to get back in the vehicle and start the ignition.  The officer
reached into the vehicle and pushed petitioner’s hands away from the
ignition.  Petitioner attempted to close the driver’s side door on the
officer, and the officer hit him on his side with a flashlight.  A couple
of minutes later, the police arrived and arrested petitioner for
trespassing.  Petitioner was handcuffed, and a search of his person turned
up a pair of latex gloves and a digital camera.
¶ 18.        
Petitioner claimed in his amended petition that his trial counsel was
ineffective for not filing a motion to suppress based on his unlawful detention
on the night of the incident.  The superior court rejected this claim,
ruling that although it might have been better practice for his attorney to
have challenged the detention, petitioner could not demonstrate prejudice
because of the unlikelihood of prevailing on such a challenge.  Citing State
v. Young, 2010 VT 97, 189 Vt. 37, 12 A.3d 510, the court stated that,
although petitioner was stopped by a police officer, the officer was off duty
and acting as private citizen rather than a government actor when he detained
petitioner based on a reasonable belief that petitioner had committed a felony.
¶ 19.        
On appeal, petitioner argues that his detention was unlawful because his
conduct could not have evoked a reasonable suspicion that he had committed any
identifiable crime, let alone a felony.  According to petitioner, the only
crime that he may have committed was voyeurism, and Vermont’s voyeurism statute
had not yet been enacted at the time of the incident in question. 
According to petitioner, because the off-duty officer had no authority to stop
or detain him, the aggravated assault charge would have been dismissed if his trial
counsel had moved to suppress evidence based on the unlawfulness of his
detention.
¶ 20.        
As noted, in rejecting this argument, the superior court relied upon Young,
wherein we concluded that an initial encounter between an off-duty officer and
a driver who had pulled into the officer’s private driveway late at night was
outside the scope of the Fourth Amendment because the officer was acting as a
private citizen rather than a government actor when he detained the
driver.  2010 VT 97, ¶¶ 10, 15; see generally 1 W. LaFave, Search and
Seizure § 1.8(d), at 420 (5th ed. 2012) (“[A] search is private if the off-duty
officer was at that time acting as a private individual rather than as a
policeman.”).  Notwithstanding petitioner’s attempts to distinguish Young,
we agree with the superior court that, at least initially, the off-duty officer
in this case was acting as a private citizen protecting his property and
family.  See Young, 2010 VT 97, ¶ 15 (“[T]here can be no
substantial doubt that the officer here was acting to protect his property and
family, and the trial court so found.”).  The officer had just seen a man
peering into his daughter’s bedroom window on multiple occasions late at night.
 He identified the person attempting to leave in a vehicle as that man,
and he had every right as a private citizen and homeowner to confront the man
to determine what he had been doing on his property.  The fact that the
homeowner was an off-duty officer did not negate that right.
¶ 21.        
Hence, up until the time he announced he was a police officer and asked
petitioner for identification, the officer was acting as a private citizen
rather than a government actor subject to the restrictions of the Fourth
Amendment.  At that point, when petitioner sought to explain his behavior
of peering into windows by giving the officer a story that did not comport with
the actions the officer had observed, the officer was justified in further
detaining petitioner to await the arrival of the police based on a reasonable suspicion
that he had been engaged in criminal activity.  See State v. Chapman,
173 Vt. 400, 402, 800 A.2d 446, 449 (2002) (noting that brief detention is
permitted if officer has reasonable grounds to suspect that detainee was
engaged in wrongdoing at time of encounter); cf. State v. Bacon,
2005-Ohio-6238, ¶ 72, 2005 WL 3120233 (Ct. App.) (concluding
that officers had requisite reasonable suspicion to detain suspect who had been
peering in windows of private residence); State v. Dickerson,
2002-Ohio-381, 2002 WL 126087, at *1, *3 (Ct. App.) (same).
¶ 22.        
 Petitioner seeks to avoid this conclusion by contending that, at
most, his behavior amounted to voyeurism, which was not a crime at the time,
and did not satisfy the elements of aggravated stalking, which is a
felony.  This contention is essentially a reiteration of his first
argument, which we resolved in favor of the State.  Accordingly, the
contention is unavailing for the reasons stated above.
¶ 23.        
Petitioner asserts further that the duration of the stop and the
officer’s use of force turned the stop into a de facto arrest lacking the
requisite probable cause.  See Chapman, 173 Vt. at 403, 800 A.2d at
449 (“Courts have recognized . . . that an investigative detention or Terry
stop may become ‘too intrusive to be classified as an investigative detention’
and may instead become the functional equivalent of a de facto arrest.”
(quoting United States v. Perea, 986 F.2d 633, 645 (2d Cir. 1993)
(citations omitted))).  “ ‘Whether a seizure is
an arrest or merely an investigatory detention, depends on the reasonableness
of the level of intrusion under the totality of the circumstances.’ ”  Id. (quoting Posr v. Doherty, 944 F.2d
91, 98 (2d Cir. 1991)).  “In assessing whether the degree of restraint is
too intrusive to be classified as an investigatory detention,” courts consider
a number of factors, including the amount of force applied,
the extent to which the detainee is restrained, whether handcuffs were used,
the number of agents involved, the duration of the stop, and whether the
detainee was suspected of being armed.  Id.
¶ 24.        
Petitioner cites the duration of the stop and the officer’s use of force
to support his contention that there was a de facto arrest.  Regarding the
duration of the stop, petitioner states only that the detention was for “an
extended period of time,” without being more specific.  In fact, the
record shows that the entire stop lasted several minutes at most.  The
police responded within three minutes of receiving a telephone call from the
officer’s wife, who had been asked by her husband to call the police as he left
to confront the intruder.  In short, the duration of the stop was
relatively brief.
¶ 25.        
As for the force used by the officer, “if there is reasonable ground for
suspicion that will justify an investigatory stop, reasonable force may be used
to effect that stop.”  United States v. Streifel, 665 F.2d 414, 422
(2d Cir. 1981); see Graham v. Connor, 490 U.S. 386, 396 (1989) (“Our
Fourth Amendment jurisprudence has long recognized that the right to make an
arrest or investigatory stop necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect it.”).  Here, the
lone officer did not use handcuffs or restrain petitioner other than requiring
him to remain while awaiting the imminent arrival of the police.  Cf. Chapman,
173 Vt. at 405-06, 800 A.2d at 450-51 (concluding that detention was too
intrusive to be considered merely investigative stop where officer drew his
weapon, ordered defendant to his knees, and frisked him despite absence of
evidence that defendant was suspected of serious criminal activity).  When
petitioner attempted to leave in his vehicle, however, the officer pushed him
toward the passenger seat and struck him once on the side with a
flashlight.  The State asserts that this use of force was no more than
necessary to make petitioner comply with the brief investigative stop pending
the imminent arrival of other officers.  See id. at 402-03, 800 A.2d
at 449 (stating that investigative detention employs least intrusive means
reasonably available to verify or dispel officer’s suspicions in short period
of time).
¶ 26.        
We need not determine in this case whether the officer’s use of force
transformed his investigatory stop into a de facto arrest, insofar as the
officer had probable cause to arrest petitioner, having observed him engage in
activities that, as we ruled above, support his conviction for the offense of
aggravated stalking.  See State v. Chicoine, 2007
VT 43, ¶ 8, 181 Vt. 632, 928 A.2d 484 (mem.) (stating
that probable cause for warrantless arrest “exists when the facts and
circumstances known to an officer are sufficient to lead a reasonable person to
believe that a crime was committed and that the suspect committed it”). 
Therefore, the superior court did not err in determining that petitioner failed
to show that he was prejudiced by his attorney not filing a motion to suppress
based on the unlawfulness of the stop.
The superior
court’s decisions granting summary judgment to petitioner and vacating his
aggravated stalking conviction are reversed.  The court’s decision
granting the State summary judgment on petitioner’s
ineffective-assistance-of-counsel claim is affirmed, and petitioner’s PCR
petition is dismissed.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 

