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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-401

                                          JULY TERM, 2015

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Anthony Morabito                                      }    DOCKET NO. 1320-12-13 Bncr

                                                            Trial Judge: David A. Howard

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

        Defendant appeals from a judgment of conviction for leaving the scene of an accident, in
violation of 23 V.S.A. § 1128(a). He contends the evidence was insufficient to establish that he
failed to identify himself as soon as reasonably possible. We affirm.

        The facts may be summarized as follows. On the morning of November 11, 2013, a
resident of Observatory Street in the Town of Bennington contacted the police to report damage
to his property. The property owner testified that he had been away the prior evening, and when
he returned in the morning around 9:00 a.m. or 10:00 a.m., he observed that his lawn had been
“plowed up” and that two neighbors’ lawns had also been damaged. When a police officer
arrived, at about 11:00 a.m., the officer observed that the “property was damaged significantly,”
and that other nearby properties had also suffered damage. The property owner pointed out to
the officer a truck with a plow attached that was parked about 100 yards up the road. The truck
had a note under the windshield which the officer photographed. The resident recalled that it
indicated something like, “lost my brakes, be back to pick up the truck.” The photograph of the
handwritten note shows two clear lines, stating: “Brakes are not working right. Tow truck
Monday morning.” Although a small box appears to contain one additional handwritten word,
no other contact information containing defendant’s full name, telephone, number or address is
visible anywhere on the note.

        The officer testified that he recognized the truck as belonging to defendant, and radioed
dispatch to inform defendant that the officer was on his way to his residence. After arriving, the
officer asked defendant about what had happened to his truck the night before, and defendant
told him that he had “lost his brakes.” After further questioning by the officer, and an ensuing
physical altercation with defendant and an acquaintance, defendant was arrested for leaving the
scene of an accident and resisting arrest.1



         1
          Because the court subsequently entered a not-guilty verdict on the charge of resisting
arrest, we need not set forth any additional facts underlying that charge.
        Defendant testified on his own behalf. He stated that he was driving down a steep hill on
the night of November 10, 2013, when he lost his brakes and, in response, quickly turned into a
driveway with a “steep incline” to use “the gravity force” to stop the truck before hitting the
house. Defendant recalled that it was cold and snowy, and he concluded that he would leave a
note and “deal with [it] in the morning.” Accordingly, defendant backed down out of the
driveway, drove up the hill, parked the truck on a level area, left a note on the windshield, and
walked home. Defendant claimed that he put his name and phone number on the note, which he
surmised may have been washed away. He also stated that he knocked on the door of the
residence, but nobody was home. When the officer arrived late the next morning, defendant
recalled that he was having coffee with friends and cooking potato salad.

        Following the one-day bench trial, the court entered its findings and conclusions on the
record. The court found that defendant was operating a motor vehicle on the evening in
question, and was knowingly involved in an accident that caused damage to the lawn of a
residence. The court further found reasonable defendant’s explanation that he thought to knock
on the door of the residence, but “debat[able] whether he somehow should have left a message
on the door versus leaving a short note on his vehicle about how it was not running,” and equally
“debat[able] whether he should have somehow “made his way to the police station” rather than
going straight home. Whatever was reasonable “the night before,” however, the court found that
defendant did not act within a reasonable time the next day, when he “hadn’t made any effort to
call the police or to get back to the person” before the officer arrived, and found that this “was
not a reasonable time period to ignore the situation.” Accordingly, the court entered a guilty
verdict on the charge of leaving the scene of an accident.2 This appeal followed.

        Defendant contends the evidence was insufficient to support a finding that he failed to
identify himself as soon as reasonably possible. The standard on review is whether the evidence,
when viewed in the light most favorable to the verdict and excluding any modifying evidence,
could fairly and reasonably convince a trier of fact that the defendant is guilty beyond a
reasonable doubt. State v. Turner, 2003 VT 73, ¶ 7, 175 Vt. 595 (mem.).

         The statute at issue requires a driver involved in an accident causing property damage to
“immediately stop and render any assistance reasonably necessary” and “give his or her name,
residence, license number, and the name of the owner of the motor vehicle to any person who is
injured or whose property is damaged and to any enforcement officer.” 23 V.S.A. § 1128(a).
“We have held that the immediacy with which a defendant renders aid and provides information
is a fact-specific inquiry, but that aid and identification should occur ‘as soon as reasonably
possible.’ ” State v. Myers, 2011 VT 43, ¶ 37, 190 Vt. 29 (quoting State v. Severance, 120 Vt.
268, 274 (1958)); see also State v. Loso, 151 Vt. 262, 266 (1989) (observing that, under the
statute, “failure to . . . to give the required information at a time and manner reasonable under the
circumstances is sufficient to convict”).

       Defendant argues that he acted reasonably under the circumstances by knocking on the
property owner’s door and by leaving a note on the truck. He asserts that these actions
demonstrate that he did not leave the scene without trying to contact the owner or without
leaving identifying information. The evidence does not support defendant’s claim, however, that
the note contained his contact information. Neither the property owner nor the officer saw any

       2
           As noted at n.1, infra, the court went on to find defendant not guilty on the charge of
resisting arrest.
                                                 2
contact information on the note; the photograph shows none; and the officer did not—contrary to
defendant’s claim—identify defendant from information contained in the note, but rather from
his own knowledge of defendant’s truck. Moreover, in the hours between the accident and the
officer’s arrival at his door, defendant took no further action to contact the property owner or any
action to contact law enforcement. Defendant’s decision to drink coffee with his friends and to
cook potato salad the next morning before taking any further action relative to the accident belies
any claim that defendant acted “as soon as reasonably possible” to report the accident.

        Thus, under the circumstances, the evidence was sufficient to support the court’s
conclusion that defendant failed to take reasonable steps to contact the property owner and the
police as soon as reasonably possible. Accordingly, we discern no basis to disturb the judgment.

       Affirmed.


                                                BY THE COURT:


                                                _______________________________________
                                                Marilyn S. Skoglund, Associate Justice

                                                _______________________________________
                                                Beth Robinson, Associate Justice

                                                _______________________________________
                                                Harold E. Eaton, Jr., Associate Justice




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