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

                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2015-147

                                          JUNE TERM, 2016

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Caledonia Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Keith Baird                                           }    DOCKET NO. 8-1-13 Cacr

                                                            Trial Judge: Robert R. Bent

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

            Defendant appeals from his conviction, by jury, of thirty counts of violating a
   relief-from-abuse (RFA) order, second or subsequent offense. He argues that the court
   erred in denying his motion for a judgment of acquittal because the State failed to prove
   that he was served with the final RFA order. Defendant also asserts that he was denied due
   process in the RFA proceedings. We affirm.

          In August 2013, defendant was charged with numerous counts of violating a RFA
   order for allegedly calling his ex-girlfriend repeatedly from jail during October 2012. A
   RFA order, which had been issued by default, prohibited any contact between defendant
   and his ex-girlfriend. At trial, the State played recordings of the phone calls at issue.
   Copies of the temporary, final, and corrected-final RFA orders were also entered into
   evidence, as were returns of service. The temporary RFA order issued September 12,
   2012, and was served on defendant the same day; the final order issued September 19,
   2012, service of which is discussed below; and the court sua sponte issued a corrected-final
   order on October 15, 2012, which was served on October 16, 2012.

            The return of service dated September 20 was on a form with a preprinted header
   stating, “Temporary Order for Relief from Abuse Return of Service.” A sheriff’s deputy
   testified that the court provided him with the packet of materials to be served as well as the
   return-of-service form and that they were served as soon as possible, often on the same
   day. The deputy stated that he did not always read the name of the document that he was
   serving and compare it with the title of the document identified on the return of service
   form. He testified that despite the title on the September 20 return of service, he had
   served a final RFA order on defendant on that day. On cross-examination, the deputy
   reiterated his belief that he had served the final order but acknowledged that he could not
   be sure.
        At the close of the State’s case, defendant moved for a judgment of acquittal,
arguing that the State failed to prove that he had been served with the final RFA order.
The court denied the motion. It found that the jury could conclude based solely on
sequencing and the illogic of serving the temporary order again, that the sheriff’s initial
recollection of serving the final order was sound, without resorting to speculation. The
defense rested without presenting any evidence, and the jury convicted defendant of thirty
counts of violating the RFA order.

         Defendant filed a post-trial motion for judgment of acquittal, which the court
denied. The court also considered a motion to dismiss that defendant had filed the day
before trial. In his motion, defendant asserted that he was denied due process in the RFA
proceedings because jail officials did not allow him to participate in the RFA hearing by
telephone. Following a hearing, the court found no due process violation. It explained that
defendant did not request permission from the family court to appear by telephone, which
would have put the family court on notice of his intent to participate in the RFA
proceeding and the potential need for assistance in facilitating such an appearance.
Instead, one or two days before the scheduled hearing, defendant submitted a request to the
jail for telephone access. When he did not receive a response, he waited until the hearing
was about to begin before attempting to pursue his request through the jail. The court
found that these measures fell far short of any timely effort to notify the court of his need
for alternative appearance. The court held defendant substantially responsible for the
failure to be heard because he did not avail himself of court rules allowing formalized
telephone access, and he did not timely notify his case manager of his needs. The court
also found that defendant did not establish any prejudice from the alleged due process
violation as he did not seek to modify or vacate the RFA order; instead, he challenged the
order only after he was charged with violating it. This appeal followed.

        Defendant first asserts that the court erred in denying his motion for judgment of
acquittal. Defendant reiterates his argument that the jury had to speculate as to whether he
was served with the final order. He maintains that any inferences to be drawn from the
evidence, whether logical or illogical, required conjecture.

        We review the court’s decision “de novo, considering whether the evidence, when
viewed in the light most favorable to the State and excluding any modifying evidence,
fairly and reasonably tends to convince a reasonable trier of fact that the defendant is guilty
beyond a reasonable doubt.” State v. Ellis, 2009 VT 74, ¶ 21, 186 Vt. 232 (quotation
omitted). “In doing so, we assess the strength and quality of the evidence; evidence that
gives rise to mere suspicion of guilt or leaves guilt uncertain or dependent upon conjecture
is insufficient.” State v. Albarelli, 2011 VT 24, ¶ 17, 189 Vt. 293 (quotation and
alterations omitted). At the same time, we remain mindful that “[a] defendant’s guilt may
be established by direct evidence and by circumstantial evidence, and proof of facts
includes reasonable inferences properly drawn therefrom.” State v. Erwin, 2011 VT 41, ¶
20, 189 Vt. 502 (quotation omitted).

        The jury was not required to resort to conjecture to conclude that defendant was
served with a copy of the final RFA order here. As set forth above, the deputy testified
that court orders were served as quickly as possible after they were received from the
court. The temporary RFA order was served the day it issued because defendant happened
to be in court on that day. The corrected final order was served on defendant the day after
it issued. The jury could reasonably infer that a similar process occurred with respect to
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the final RFA order at issue. The final order was issued on September 19, and the
following day, defendant was served with an order that had been provided to the deputy
sheriff by the court. As the court below noted, there was “no reason for any return of
service to have been made on September 19 or 20 except for service of the final order
which issued on that date.” The fact that other possibilities exist does not render this
inference unreasonable. See State v. Warner, 151 Vt. 469, 471 (1989) (noting that, where
defendant argued that there were other possible conclusions to be drawn from evidence, his
argument went not to sufficiency of evidence but to its weight, which was question of fact
for jury); see also State v. Durenleau, 163 Vt. 8, 12 (1994) (“[T]he State is not required to
exclude every reasonable hypothesis of innocence in proving a case with circumstantial
evidence.” (quotation omitted)). The jury here could properly “employ rational inferences
to bridge factual gaps left by circumstantial evidence,” Durenleau, 163 Vt. at 14, without
resorting to speculation. The court properly denied defendant’s motion for a judgment of
acquittal.

        We turn next to defendant’s motion to dismiss. According to defendant, he
established a due process violation. He notes that the court found him credible regarding
his efforts to use the telephone in jail, and he argues that there was no evidence to show
that he knew that he could file a motion with the family court to request participation by
telephone. As to his failure to challenge the order until he was charged with violating it,
defendant asserts that he was unaware of the final RFA order until he received the
amended version in October 2012.

        We find no error. As a general rule, parties are barred from collaterally attacking
court orders or challenging such orders by violating them. State v. Mott, 166 Vt. 188, 191-
92 (1997). A defendant charged with violating an RFA order may argue, however, that the
order “was issued in violation of [his or her] due process rights.” Id. at 192. “Due process
of law in this circumstance requires that defendant receive notice and an opportunity to be
heard.” Id. Defendant failed to show a due process violation here.

       Although “preventing defendant from any meaningful access to the abuse
prevention proceeding would be a denial of due process,” id. at 192-193, that did not occur
here. Even though the court credited defendant’s statements about his jailhouse conduct, it
concluded that he failed to timely and properly avail himself of the alternatives to a
personal appearance at the RFA hearing. We agree.

         Defendant could have participated by telephone, but as in Mott, that alternative was
not explored “because defendant never made a request for access” to the court. Id. at 193.
As we recognized in Mott, it is a defendant’s “responsibility to bring his inability to obtain
access to the abuse prevention proceeding to the attention of the family court.” Id.
Defendant’s suggestion that he was unaware of the family court rules is unavailing. See
id.; see also Zorn v. Smith, 2011 VT 10, ¶ 22, 189 Vt. 219 (explaining that “although pro
se litigants receive some leeway from the courts, they are still bound by the ordinary rules
of civil procedure” (quotation omitted); Adamson v. Dodge, 2006 VT 89, ¶ 4, 180 Vt. 612
(“Although we will not permit unfair advantage to be taken of a pro se litigant, it is not the
obligation of the family court or this Court to offer affirmative help.”).

       Defendant’s remaining argument is equally unpersuasive. Even if defendant was
not aware of the final RFA order until October 2012, this does not undermine the court’s

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conclusion that he failed to challenge the order in any way until he was charged with
violating it.

      Affirmed.

                                         BY THE COURT:

                                         _______________________________________
                                         John A. Dooley, Associate Justice

                                         _______________________________________
                                         Marilyn S. Skoglund, Associate Justice

                                         _______________________________________
                                         Beth Robinson, Associate Justice




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