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@vermont.gov or by mail at: Vermont Supreme Court, 109
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before this opinion goes to press.


                                          2017 VT 90

                                          No. 2016-141

State of Vermont                                               Supreme Court

                                                               On Appeal from
   v.                                                          Superior Court, Windsor Unit,
                                                               Criminal Division

Gregory Manning                                                March Term, 2017


Theresa S. DiMauro, J.

Heidi W. Remick, Windsor County Deputy State’s Attorney, White River Junction, for
 Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Dawn Matthews and Marshal Pahl, Appellate
 Defenders, Montpelier, for Defendant-Appellant.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   REIBER, C.J.      This appeal stems from an embezzlement case concerning four

missing bank deposits defendant was entrusted to make for his employers. Following his jury

conviction on a single count of embezzlement, in violation of 13 V.S.A. § 2531(a), defendant

argues on appeal that: (1) the State’s failure to preserve potentially exculpatory video evidence

should have resulted in the trial court dismissing the charge or at least barring the State from

presenting testimony concerning the video recordings in question; (2) the State’s closing argument

impermissibly shifted the burden to him to preserve the video evidence and improperly impugned

his defense; and (3) given his continuing claim of innocence, the sentencing court’s probation

condition requiring him to complete a particular program in which he would have to accept
responsibility for his crime was not individually tailored to his case and thus constituted an abuse

of the court’s discretion. We affirm.

       ¶ 2.    The record reveals the following facts. Defendant worked at the Corner Stop Mini

Mart, located in Royalton, Vermont, for several years leading up to the incidents in question. He

was a trusted employee and friend of the couple who owned the Mini Mart. As a trusted employee,

he was responsible at times for making the store’s bank deposits, including night deposits, at the

local bank.

       ¶ 3.    At the end of each shift, cashiers at the Mini Mart counted the money in the drawer,

noted how much was in cash, change, and checks, and filled out a deposit slip. The money and

deposit slip were then placed in a zippered bag to be deposited at the bank. A daily sales report

was kept by the store for bookkeeping purposes. On days that defendant worked, he would take

deposits to the bank. Otherwise, the cashier would drop the bag in the store’s drop safe, and one

of the store’s owners would make the deposit. Defendant was the only employee allowed to make

after-hours bank deposits.

       ¶ 4.    At some point between mid-November and December 2013, the store owner who

did the bookkeeping noticed a missing deposit. Due to the date of the deposit, October 26, she

was not concerned because she thought it would appear on the November statement. When the

deposit did not appear, she called the bank to inquire about the missing deposit. Soon thereafter,

she noticed a second missing deposit, dated November 27. Several weeks later, she discovered

two more missing deposits from December 14, 2013 and January 2, 2014. Defendant was working

on all four dates and thus would have been responsible for taking the deposits to the bank. The

four missing deposits totaled over $10,000: $2302 from October 2013, $2554 from November

2013, $3153 from December 2013, and $2077 from January 2014.

       ¶ 5.    The bank made an initial search for the missing deposits, but found no record of the

deposits on the dates in question or the days immediately after those dates for either the Mini Mart

account or any other account. In early January 2014, the regional security manager for the bank
                                               2
began investigating the missing deposits. After reviewing security camera footage, she did not

observe defendant on October 26, 2013;1 however, footage from the other three dates appeared to

show defendant approaching the after-hours drop box with the deposit bag, but then either holding

the bag in the box and withdrawing it or placing the bag in his coat before putting an empty hand

in the box.

       ¶ 6.    At the security manager’s invitation, she, a Royalton police officer, the store

owners, and defendant watched the camera footage from the November and December incidents

together. Regarding the November deposit, defendant claimed he was having trouble with the

deposit box, and the bag would not drop in properly. He alleged he returned to the bank a day

later to make the deposit in person with a teller.2 Defendant’s wife testified at trial that she

accompanied defendant the Friday after Thanksgiving to make the November deposit. Regarding

the December deposit, defendant claimed that two money bags were stuck together, one of which

was empty, and that he pulled back only the empty bag out of the deposit box while dropping in

the one containing money.

       ¶ 7.    After viewing the camera footage of the night deposits, defendant requested in

writing that security videos be preserved for the night deposit on November 27 and 28 and for the

entire day on November 28 and 29, as well as December 14 and 16. The security manager replied

in writing that the federal Gramm-Leach-Bliley Financial Privacy Act prohibited the bank from

honoring his request without a subpoena. Defendant never provided the bank with a subpoena.




       1
          The October deposit would have occurred during the day because defendant’s shift ended
in the early afternoon. The remaining missing deposits would have occurred after the store closed,
via the bank’s night deposit box.
       2
          Defendant claimed that after having trouble with the night deposit box on November 27,
2013, and not being able to make the deposit, he returned to the bank the next day to deposit the
money in person with a teller. As the bank security manager testified, November 28 was
Thanksgiving Day and thus the bank was closed. The manager reviewed camera footage for the
two days thereafter—November 29 and 30—to see if defendant returned to make the deposit. The
internal bank camera footage from those days was not saved.
                                                 3
       ¶ 8.    In February 2014, the security manager and the Royalton police officer reviewed

the internal bank camera footage from November 29 and 30. The officer testified that he did not

seek a warrant to obtain copies of the footage because he “did not see the defendant come into the

bank and give the deposit to a teller” like the defendant stated he did.

       ¶ 9.    In early March 2014, the Royalton officer learned of the missing January deposit

and contacted the bank to see if there was any relevant camera footage. The bank produced security

footage that showed defendant walking to the night depository and then walking away without

depositing anything. Regarding that incident, defendant testified that he had issues with the

deposit box and brought the deposit home, later returning to the bank to deposit it with a teller.

       ¶ 10.   On June 16, 2014, defendant was charged with embezzling money in excess of

$100 between October 26, 2013 and January 2, 2014, in violation of 13 V.S.A. § 2531(a). At

arraignment the following day, defendant pleaded not guilty and was released on bail. After a two-

day jury trial held July 22 and 23, 2015, defendant was convicted of embezzlement. Defendant

filed a motion for judgment of acquittal, or alternatively, for a new trial, arguing that: (1) the

evidence was insufficient to establish that he came into possession of his employer’s money; and

(2) the State’s repeated claims that defense counsel could have subpoenaed interior bank camera

footage were unsupported by any evidence that the footage at issue was available to be subpoenaed

by the time he was arraigned on the embezzlement charge. The trial court denied defendant’s

motion, stating that the evidence was sufficient for the jury to find defendant guilty beyond a

reasonable doubt and that, in noting defense counsel’s ability to have subpoenaed the video

footage, the State was responding to defense counsel’s cross-examination regarding the bank’s

failure to preserve the footage. Following a hearing, the court sentenced defendant to one to five

years, all suspended except for thirty days. His sentence was subject to several probationary

conditions, including a condition that he complete the Restorative Justice Program to the

satisfaction of his probation officer.


                                                  4
       ¶ 11.    Defendant now appeals, arguing that: (1) the State failed to preserve interior bank

camera footage that was potentially exculpatory evidence; (2) the State’s closing argument

impermissibly shifted to him the burden to preserve the camera footage and improperly impugned

his defense; and (3) the probation condition requiring him to complete the Restorative Justice

Program was not individually tailored to his circumstances.

       ¶ 12.    Regarding his first claim of error, defendant argues that the “real issue” is a denial

of due process based on the State’s failure to preserve potentially exculpatory evidence. He

contends that, under this Court’s three-part test set forth in State v. Bailey, 144 Vt. 86, 475 A.2d

1045 (1984),3 and later reaffirmed in State v. Delisle, 162 Vt. 293, 648 A.2d 632, he is entitled to

dismissal of the charge or at the least a new trial in which the State would be precluded from

presenting any testimony concerning the viewing of interior bank camera footage that was no

longer available and had not been preserved by the State.

       ¶ 13.    As an initial matter, we address the State’s claim that defendant failed to adequately

raise his due process claim during the trial court proceedings. As the State points out, during the

thirteen months before trial when he was represented by counsel, defendant neither subpoenaed

the interior videos from the bank4 nor filed a motion in limine to prevent the State from presenting

testimony concerning the videos.

       ¶ 14.    In her opening statement at trial, the prosecutor told the jury, with respect to the

November missing deposit, that although defendant claimed he made the deposit during bank

hours the next day after having trouble with the night deposit box the previous evening, police and

bank personnel viewed interior bank camera footage of the two following bank days but did not



       3
           Bailey was abrogated on other grounds by Arizona v. Youngblood, 488 U.S. 51 (1988).
       4
          The record contains no evidence as to exactly when the relevant interior bank camera
footage was recorded over. Although defendant was told in early February 2014 that he could not
obtain the videos without a subpoena, he was not charged until June 2014. Hence, it is unclear
whether the videos still would have been available when he could have obtained them via a
subpoena.
                                               5
see defendant enter the bank to make a deposit. The bank security manager later testified on direct

examination that she reviewed the bank’s interior camera footage for those days. When the

prosecutor asked her if she was “able to find any indication . . . ,” defense counsel objected that

this was “hearsay in disguise” in that the prosecutor was really getting the security manager to say

that the video did not show anything. Defense counsel also argued that the manager’s answer

would violate the best evidence rule because the interior video footage was not preserved despite

defendant’s request that it be preserved. The court ruled that the video recording was not an out-

of-court statement, as defense counsel argued, and that if defendant was going to testify that he

came in later during bank hours to make the deposit, the manager is “going to have to get back on

the stand to rebut that.” Following this exchange, the prosecutor changed subjects, and the

manager provided no further testimony regarding the interior bank camera footage.

        ¶ 15.   During cross-examination of the Royalton police officer, defense counsel elicited

testimony that the bank allowed the officer to view interior bank camera footage of the days in

question but would not provide him with a copy of the footage without a warrant, which the officer

never obtained. On redirect examination, when the prosecutor asked the officer why he determined

that it was not necessary to get a warrant to obtain a copy of the camera footage, defense counsel

objected based on the best evidence rule, to which the court replied that the officer was not yet

talking about the contents of the video and that the State was merely obtaining testimony in

response to defense counsel’s suggestion during cross-examination of the officer that he should

have gotten a warrant. The officer then testified, in response to the prosecutor’s question, that

based on what he “observed in the video,” he “did not see the defendant come into the bank and

give the deposit to a teller like he stated . . . he did.”

        ¶ 16.   Following his brief cross-examination of the officer, defense counsel renewed his

objection to testimony concerning the interior bank camera footage. A lengthy discussion ensued

among the attorneys and the court after the jury was excused for a recess. The discussion centered

around the exceptions to the best evidence rule. Defense counsel did not explicitly claim a
                                             6
violation of due process or mention the three-part Bailey test during the discussion. The parties,

however, debated whether the State could have and should have obtained copies of the interior

bank footage, given defendant’s primary defense—that he had made the deposits later during

regular bank hours after having trouble with the deposit box—and whether the State was

attempting to present testimony concerning what was observed on the unretained camera footage.

       ¶ 17.   In light of this record, it is questionable whether defendant adequately preserved

his claim on appeal that the State’s failure to preserve the interior bank camera footage violated

his right to due process pursuant to the Bailey test. Compare State v. Lettieri, 149 Vt. 340, 344,

543 A.2d 683, 685 (1988) (“An objection made on the wrong grounds and overruled below

precludes a party from making a different objection on other, tenable grounds on appeal.”) with

State v. Porter, 2014 VT 89, ¶¶ 9-10, 197 Vt. 330, 103 A.3d 916 (concluding that defendant’s

hearsay objection was sufficient to preserve issue of admissibility under Vermont Rule of Evidence

602 because “issues of hearsay and personal knowledge are closely linked in this case”). We need

not resolve this question, however, because we conclude that, even assuming defendant properly

preserved an objection based on a violation of due process claimed to be the result of the State’s

failure to preserve exculpatory evidence, defendant has failed to show a reasonable possibility that

the interior bank camera footage would provide exculpatory evidence, and thus this case does not

meet the threshold requirement and fall within the due process protections of Bailey. As we stated

in Delisle:

               In Bailey, we held that if a defendant shows a reasonable possibility
               that the lost evidence would be exculpatory, then the proper
               sanctions depend upon a pragmatic balancing of three factors:
               (1) the degree of negligence or bad faith on the part of the
               government; (2) the importance of the evidence lost; and (3) other
               evidence of guilt adduced at trial.

162 Vt. at 310, 648 A.2d at 642-43 (citation and quotations omitted) (emphasis added); cf. Bailey,

144 Vt. at 94, 475 A.2d at 1050 (although ultimately ruling in favor of state based on balancing of



                                                 7
three factors, concluding that defendant had shown reasonable possibility that further testing of

physical evidence would have been favorable to him in light of hospital test results).

       ¶ 18.   As the trial court stated at the sentencing hearing, “[i]t could hardly be clearer”

from viewing the night deposit video recordings “what [defendant] did.” The recordings, which

the jury viewed multiple times, plainly showed defendant on three separate occasions pantomime

putting the deposit bags into the box but then not depositing the money either because he kept the

bag in his hand or because he had placed the bag in his jacket before placing his empty hand in the

box. The recordings provide no support for defendant’s claims that the box was not operating

properly or that on one occasion two bags were stuck together and he pulled back only the empty

one. Notably, defendant did not contend that he pantomimed depositing the money in the box but

later changed his mind and deposited the money during regular bank hours; rather, he insisted that

he tried to deposit the money but for various reasons was unable to do so on two of the occasions

in question. The video recordings of the night deposits demonstrably show otherwise.

       ¶ 19.   In addition to the unambiguous video recordings, the State presented evidence of

the bank’s unavailing attempts to locate the missing deposits by searching the night deposit logs

for the time period in question, reviewing video of the night deposit vault being emptied to see if

bank procedures were followed, and examining bank records to see if the deposits were credited

on the wrong date or to the wrong account. The State also presented evidence that defendant had

never told the Mini Mart owners of any problems with the night deposit box on the dates in

question and that the bank had reviewed service records of the night deposit box during the period

in question but found no record of any malfunction or complaints about the box not functioning

properly. Given all of this evidence, defendant cannot show a reasonable possibility that interior

bank camera footage from the dates in question would have produced exculpatory evidence.

Accordingly, his claim of a due process violation pursuant to Bailey is unavailing.

       ¶ 20.   In a related argument, defendant contends that during closing argument the

prosecutor improperly impugned his defense and impermissibly shifted onto him the burden of
                                            8
preserving evidence. Regarding the latter claim, the prosecutor did not mention the absence of

the interior bank camera footage in her initial statement during closing argument. In response to

the prosecutor’s closing argument, defense counsel emphasized the inadequacy of the police

investigation. Referring to the suggestion during trial that the defense could have subpoenaed the

interior bank camera footage requested by defendant, defense counsel asked the jurors: “Did you

hear anything about it being available for subpoena at [the time] this case was actually filed in

court?” During her rebuttal statement, the prosecutor stated, “[W]hat [defense counsel] isn’t

telling you is that the defense has the power to obtain those videos.” Defense counsel objected

and moved for a mistrial, arguing that he did not have the opportunity to subpoena the videos.

After the court denied the motion, the prosecutor noted that the bank security manager told

defendant the videos could not be obtained without a subpoena, and then stated to the jury:

               So frankly, we’ll never know why [defendant] did or didn’t
               [subpoena the interior bank footage] but that would just be
               speculation but frankly for him to come here and argue that you
               should throw a case out because the bank didn’t turn over evidence
               that he didn’t request through the process available to him is just
               unfair.

Again, defense counsel objected, and the court overruled the objection.

       ¶ 21.   As noted above, because there was no evidence indicating when the requested

interior bank camera footage was recorded over, it is not clear whether defense counsel had an

opportunity to obtain the footage after defendant was charged. But to the extent the prosecutor’s

comments erroneously suggested that defendant had the burden of obtaining exculpatory evidence

or went beyond reasonable inferences that could be drawn from the evidence presented at trial,

State v. Madigan, 2015 VT 59, ¶ 30, 199 Vt. 211, 122 A.3d 517 (“The longstanding rule in

Vermont is that counsel should confine argument to the evidence of the case and inferences

properly drawn from it.” (quotation omitted)), the comments amounted to harmless error in light

of the weighty evidence of guilt discussed above. See id. ¶ 32 (“When the admission of evidence,

exclusion of evidence, or propriety of argument is objected to in the trial court and raised on appeal,

                                                  9
we review for harmless error, determining whether (1) the ruling was erroneous, and (2) if so,

whether a substantial right of defendant was affected.” (quotation omitted)); State v. Herring, 2010

VT 106, ¶ 4, 189 Vt. 211, 19 A.3d 81 (“In the event of error, we may nevertheless uphold a

conviction if we find that the error was harmless beyond a reasonable doubt.” (quotation omitted)).

       ¶ 22.   Nor do we find reversible error with respect to defendant’s claim that the prosecutor

improperly impugned his defense. In her closing argument, after detailing the evidence presented

in support of each of the elements of the charged offense by analogizing to building a wall brick

by brick, the prosecutor stated:

               All of this talk that you’ve heard about what records the bank did or
               didn’t keep or bags sticking together or the night deposit not
               working, all of that is the defense attorney’s equivalent and no
               offense to [defense counsel] because he is doing his job, that’s the
               defense attorney’s equivalent of, hey look, a squirrel. It’s just noise.
               It’s distraction. It doesn’t come close to knocking down this wall.
               It doesn’t even poke holes in the mortar holding these bricks
               together.

Defense counsel began his response by stating, “I can tell you, offense is taken,” but he did not

object to the prosecutor’s statement. In her rebuttal statement, the prosecutor continued her theme

of labeling defense counsel’s arguments as creating a distraction:

               All this business about the bank transitioning and the compressed
               video and whether or not the deposit box sticks, all of that, you
               know, whether the police did everything in their investigation they
               could have or should have done that’s, again with no disrespect to
               [defense counsel], that’s just noise. That’s distraction. [Defense
               counsel] hopes that if he blows enough hot air—

This time, defense counsel objected, stating that it was improper for the prosecutor to argue about

what he was hoping for. After the court overruled the objection, the prosecutor stated:

               It is the job of the defense to try and knock down the wall. Clearly,
               [defense counsel] is offended by what I have said but I recognize he
               is doing his job. I’m asking you not to be distracted by those efforts
               to knock down what we discussed is a solid wall of evidence.

       ¶ 23.   On appeal, defendant does not reiterate his objection that the prosecutor improperly

commented on what he was hoping for, but rather argues now that the prosecutor improperly

                                                 10
impugned his defense. We agree that the prosecutor’s comments went too far. As the prosecutor

stated to the jury, it was defense counsel’s job “to try and knock down the wall.” Defendant’s

“squirrel” and “hot air” comments were improper in that they moved beyond challenging

defendant on the evidence to disparaging defendant’s efforts to mount a defense. See Madigan,

2015 VT 59, ¶ 30 (“While counsel are entitled to a good deal of latitude in their closing arguments,

they are bound to keep within the limits of fair and temperate discussion . . . circumscribed by the

evidence in the case.” (quotations omitted)); cf. Rehkop, 2006 VT 72, ¶ 34, 180 Vt. 228, 908 A.2d

488 (stating that prosecutors’ statements conveying opinion about case have long been condemned

because they create risk that jury will give special weight to opinion due to prestige and power of

office).     Nevertheless, for the reasons noted above, viewing the record in its entirety and

considering the weight of evidence against defendant compared to the transgression at issue, we

cannot conclude that the comments deprived defendant of a fair trial. See State v. Gates, 141 Vt.

562, 566-67, 451 A.2d 1084, 1086 (1982) (stating that improper argument standing alone, without

showing of prejudice, “is insufficient to overturn a conviction”).

           ¶ 24.   Lastly, defendant argues that the trial court abused its discretion at sentencing by

requiring him to complete the Restorative Justice Program, which defendant claims would require

him to admit his guilt. According to defendant, because he has consistently denied his guilt,

including at sentencing, requiring him to successfully complete the program “doomed [him] to fail

to comply with that condition if he maintained his innocence.” In defendant’s view, this amounted

to a failure to consider his individual circumstances when imposing the condition. See State v.

Lumumba, 2014 VT 85, ¶ 27, 197 Vt. 315, 104 A.3d 627 (“[T]he court did have an obligation

under Vermont’s individualized sentencing process to examine defendant’s case and to consider

the consequences of his particular situation in fashioning a sentence.”).

           ¶ 25.   We disagree.    “Vermont law authorizes a sentencing court to set probation

conditions that reasonably relate to the crime committed or that aid the probationer in avoiding

criminal conduct.” State v. Moses, 159 Vt. 294, 297, 618 A.2d 478, 480 (1992). Defendant argues
                                               11
that the condition requiring him to complete the restorative justice program was improper because

it was not tailored to help him lead a law-abiding life. We conclude that the condition was within

the sentencing court’s discretion, given the circumstances of this case. The restorative justice

program is designed to “build understanding, encourage accountability and provide an opportunity

for healing.” Promoting a Restorative Approach to Conflict and Crime in Vermont Communities,

http://cjnvt.org/ [https://perma.cc/F3YB-Q244]. Defendant was convicted of embezzling from his

employers, who were also close friends. His crime was a breach of trust in a long-term friendship

and working relationship. Nothing in the record confirms defendant’s claim that completing the

Restorative Justice Program will require him to admit his guilt. But assuming that to be true, the

condition is appropriate irrespective of defendant’s continued claim of innocence, as long as there

are proper protections.5

       Affirmed.

                                                FOR THE COURT:



                                                Chief Justice




       5
            Defendant does not argue that that the condition requiring him to complete the
Restorative Justice Program violates his Fifth Amendment privilege to be free from self-
incrimination. Cf. State v. Cate, 165 Vt. 404, 417, 683 A.2d 1010, 1019-20 (1996) (holding that
in order to protect probationer’s privilege against self-incrimination in situations where sentencing
court has ordered defendant to admit guilt as part of sex-offender program and prosecutor has
failed to eliminate threat of future prosecution based on those admissions, probationer must be
given judicial use immunity making inadmissible in any subsequent criminal proceeding any
statements required for successful completion of program and must be advised of such immunity
at sentencing); State v. Rickert, 164 Vt. 602, 603, 665 A.2d 887, 888-89 (1995) (mem.) (rejecting
petitioner’s argument that finding probation violation based on his denying underlying charges in
Domestic Assault Education Program violated his privilege against self-incrimination, insofar as
petitioner had not argued that his denials might incriminate him in later proceedings and because
protection against double jeopardy ensured that he would face no threat of future prosecution for
challenged admissions).
                                                  12
