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



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2014-308

                                          MAY TERM, 2015

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Bennington Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 Laura Rudd                                            }    DOCKET NO. 951-9-13 Bncr

                                                            Trial Judge: Nancy S. Corsones

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

       Defendant appeals from her conviction of disorderly conduct following a jury trial. She
argues that there is insufficient evidence to support her conviction and that the probationary
sentence imposed by the court violates 28 V.S.A. § 205(c)(1). We affirm defendant’s conviction
and decline to address her statutory argument because it is moot given that her probationary term
expired on February 23, 2015.

        Defendant was charged with disorderly conduct following an incident with her neighbor.
The following evidence was presented at trial. The town police chief testified that in July 2013,
defendant went to the police department to report an incident. Defendant said that her neighbors
were putting boulders on her property and that she had gone out to confront them about it. In the
process, defendant maintained that one particular neighbor had assaulted her. According to
defendant, this neighbor was videotaping what was occurring and defendant waved to the video
camera. Defendant said that she walked up to the neighbor and the neighbor took the camera and
shoved it at her and hit defendant in the finger. Defendant provided a sworn written statement to
this effect to the police.

        The police chief went to the scene to investigate. He watched the videotape of the
encounter and interviewed other witnesses. One witness was doing roofing work at the time of
the incident. He testified that he saw defendant approach an excavator, which was there to mark
a boundary line. He then saw defendant push or shove one of the neighbors. The witness video
recorded what was occurring on his cellphone and the video was shown to the jury. The alleged
victim also testified. She stated that on the day in question, there was an excavator marking
boundary lines for a right-of-way. Defendant came from her house and walked up to the
excavator. She pounded on the excavator as it was going up the road. After speaking with the
driver of the excavator, the neighbor testified that defendant came at her. Defendant took the
neighbor’s camera and slammed the camera into the neighbor’s face, cracking the neighbor’s
glasses and her camera. The neighbor recorded this behavior on her camera as it occurred. The
neighbor denied hitting defendant or pushing her camera into defendant’s finger. The neighbor’s
video was also played for the jury.
        After the State rested, defendant moved for a judgment of acquittal. Defendant argued
that no reasonable juror could find her guilty because the evidence did not show that she had
engaged in fighting, violent, tumultuous, or threatening behavior. Defendant maintained that the
only evidence of such behavior came from “highly suspect” witnesses. The court denied the
motion, finding that when the evidence was taken in the light most favorable to the State, the
State had met its burden of proof. Defendant did not present any evidence on her behalf.

        The court instructed the jury that to convict defendant of disorderly conduct, the jurors
must unanimously agree on the type of behavior that she committed. It explained that
“threatening behavior” meant “behavior that communicates an intention to do harm to another
person or to that person’s property.” The jury found that defendant had engaged in threatening
behavior and that she was guilty of disorderly conduct. Defendant filed a post-judgment motion
for judgment of acquittal, which the court denied.

       A sentencing hearing followed. The victim testified that defendant had long been hostile
toward her and described in detail her and her family’s interactions with defendant, including
defendant giving the neighbor’s eight-year-old daughter “the finger”; dumping debris on the
victim’s property; calling the police repeatedly about the victim; videotaping the victim; and
breaking survey stakes the victim had set up. The victim said that she had had yet another
encounter with defendant on the way to the sentencing hearing. The State advocated for a
probationary sentence of one year with no early termination of probation and an underlying
sentence of fifty to sixty days. The State asked for “very strict conditions” of probation,
including a no-contact provision with respect to the victim and her family; no photographing or
videotaping of the victim or her family; no abuse or harassment of the victim and her family; and
a condition allowing defendant’s probation officer to examine defendant’s phone and camera for
unauthorized photos and videos.

        Defendant argued that the conditions proposed by the State had no rational relationship to
the crime for which defendant was convicted. Defendant asked the court to refer the matter to
the reparative board and to impose no probation or any other sentence. During her allocution,
defendant denied engaging in disorderly conduct and denied that she had ever touched the
victim. She stated that the victim hit her with the camera.

        The court explained that it was obvious that defendant and the victim had a difficult
relationship and that the court could not solve that problem. Nonetheless, it sought to respond in
a productive and rehabilitative fashion to at least minimize the chances for future difficulties
between neighbors. The court explained that it was focused on punishment and rehabilitation. It
recognized how problematic a dispute between neighbors could be, and the impact that such
disputes had on individuals and on the community. The court considered this an aggravating
factor. It appeared that the parties had both engaged in negative behavior toward one another in
the past, which the court viewed as a mitigating factor. The court did not find that a referral to
the reparative board was a viable option given the depth of animosity between the parties and the
risk that defendant would simply need to come before the court again to be sentenced. Instead, it
found a six-month term of probation appropriate with an underlying sentence of zero to sixty
days, all suspended. It imposed the “standard conditions” of probation and the following special
conditions: that defendant have no contact with the victim and her partner and that she not harass
or threaten them; that she participate in victim-offender mediation if available; and that there
would be no early termination of probation. The court declined to impose conditions prohibiting


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defendant from photographing anyone or allowing her probation officer to search her cellphone
or other camera device. This appeal followed.

        Defendant first argues that the court erred in denying her motion for judgment of
acquittal. She maintains that she did not engage in threatening behavior because her behavior
could not be construed to communicate an intention to do harm to another person or to that
person’s property. According to defendant, the most that can be determined from the evidence is
that she walked up to the neighbor, who was in close proximity, pushed the camera towards her
face and walked away. She states that her actions did not communicate an intent to do anything
else; whatever she intended to do, she did, and there was nothing about her actions that suggested
she would be doing something more.

        We review the denial of a Vermont Rule of Criminal Procedure 29 motion for judgment
of acquittal 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. Turner,
2003 VT 73, ¶ 7, 175 Vt. 595 (mem.) (quotation omitted). Judgment of acquittal is appropriate
“only if the State has failed to put forth any evidence to substantiate a jury verdict.” Id.

        The State presented sufficient evidence to substantiate the jury’s verdict here. The State
needed to establish that defendant, “with intent to cause public inconvenience or annoyance, or
recklessly creates a risk thereof” engaged in “threatening behavior.” 13 V.S.A. § 1026(a)(1). As
noted above, the court instructed the jury that “threatening behavior” means “behavior that
communicates an intention to do harm to another person or to that person’s property.” This is
consistent with our law. See State v. Cole, 150 Vt. 453, 456 (1988) (stating that “[a] threat is a
communicated intent to inflict harm on person or property,” and “[t]hreatening behavior is
behavior that communicates the requisite intent”). Here, the evidence showed that defendant
walked toward the victim and shoved a camera in her face, breaking the camera and the victim’s
glasses. Defendant communicated through this behavior her intent to harm both the victim and
her property. The State did not need to prove that she intended to harm the victim further to
meet its burden of proof. We find no error in the court’s denial of defendant’s motion for a
judgment of acquittal.

       Defendant next argues that the court’s probationary sentence violates 28 V.S.A.
§ 205(c)(1). Section 205(c)(1) provides as follows:

                Unless the court in its discretion finds that the interests of justice
               require additional standard and special conditions of probation,
               when the Court orders a specific term of probation for a qualifying
               offense, the offender shall be placed on administrative probation,
               which means that the only conditions of probation shall be that the
               probationer:

                       (A) register with the department of corrections’ probation
               or parole office in his or her district;

                     (B) notify the probation office of his or her current address
               each month;


                                                 3
                      (C) within 72 hours, notify the Department of Corrections
              if probable cause is found for a criminal offense during the term of
              probation; and

                     (D) not be convicted of a criminal offense during the term
              of probation.

Disorderly conduct, 13 V.S.A. § 1026, is a “qualifying offense.” See id. § 205(c)(2)(F).
Defendant maintains that the court ignored this statute, and that there was no reason or basis in
the record to impose the “standard” conditions in this case.

        We decline to address this argument because it is moot given the fact that defendant’s
probationary term expired on February 23, 2015. See In re Moriarty, 156 Vt. 160, 163 (1991)
(stating that “a case becomes moot when the issues presented are no longer live or the parties
lack a legally cognizable interest in the outcome” (quotation omitted)).

       Affirmed.



                                               BY THE COURT:


                                               _______________________________________
                                               Paul L. Reiber, Chief Justice

                                               _______________________________________
                                               John A. Dooley, Associate Justice

                                               _______________________________________
                                               Marilyn S. Skoglund, Associate Justice




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