State v. Woolbert

¶ 1 Defendant appeals an order of the trial court that he engaged in “violent or threatening behavior” contrary to his conditions of probation. Additionally, defendant argues that the trial court did not have the authority to modify both the “to serve” portion of defendant’s sentence and the conditions of his probation. We affirm. ¶ 2 In 2004, defendant pleaded guilty to sexual assault on a' minor and was sentenced to serve eight to twelve years with all but fourteen months of the sentence suspended. As part of his sentence, defendant was placed on probation, which applied while he was incarcerated. In March 2005, the State filed a probation violation complaint, alleging that defendant had engaged in “[vjiolent [or] threatening behavior” contrary to his probationary terms. ¶ 3 Following a hearing, the district court found that defendant had violated a condition of probation prohibiting “violent or threatening behavior.” The court revoked defendant’s probation and increased defendant’s time to serve to forty-four months. The court reimposed probation and added two additional conditions: that defendant successfully complete sex-offender treatment while incarcerated and that he not incur any major disciplinary reports (DRs). ¶ 4 At the hearing, the State presented the following evidence of a February 2005 incident from which two DRs arose: testimony of a witness to the incident, testimony of the hearing officer for the incident, and a videotape of the incident. Of the two DRs defendant received, one was for assault. The State’s probation violation complaint for “violent or threatening behavior” arose from the report for assault.1 ¶ 5 The living unit supervisor, Lynn Roberto, described the February 2005 620 incident as follows. Defendant and three other inmates refused to turn in their bed sheets for laundering. After being-warned that they would be disciplined, the three other inmates complied. Defendant, however, continued to refuse, and barricaded himself in his cell with his mattress and sheets piled up against the door. This conduct resulted in a verbal confrontation with two guards during which defendant threw his sheets at the officers. Due to his refusal to cooperate, the officers decided to transfer him to another unit. Defendant thereafter refused to leave his cell. He was pz-ofane, disruptive, and physically z-esistant throughoizt this process (referred to as a “cell extz-action”), and had to be restrained. Supez-visor Roberto testified that defendant “was yelling, he was screaming, [and] he was tz-ying to kick” during the extraction. For this z-eason, two additional officers were called in for back-zzp; ultimately it took four officers to z-estrain defendant using a “restz-aint chair.” 116. The State next called Supervisor Maz-k Boutanis, who served as the heaz*-ing officer for the Febz-uary 2005 incident. Supervisor Boutanis testified that duriizg the extz'action defendant kicked and injured another supez-visor. ¶ 7 In addition to this testimony, the district court viewed a videotape of the entire cell extraction. The tape depicts an altez-cation spanning some seven to ten minutes in which defendant engages in numez-ous outbuz-sts of physical resistance, interz'upted by quiet periods in which he is held in physical check while additional guards are called. Based on all the evidence, the district court found that defendant had been “assaultive and violent” in the cour-se of being unreasonably reactive and z-esistant when asked to tuz-n over his bed sheets. Noting that defendant had, among other things, kicked an officer, the court concluded that the State had met its burden. On appeal, defendant argues that while his conduct was noneompliant, it was not “violent or threatening” such that he violated his probation. ¶ 8 The district court’s conclusion that defendant violated his probation pz-esents a mixed question of law and fact. State v. Austin, 165 Vt. 389, 398, 685 A.2d 1076, 1082 (1996). We have recognized that in establishing a violation of probation the trial court must first make a factual determination of the probationer’s actions, and then make an “implicit legal conclusion” that the probationer’s actions violated his probationary terms. Id. If supported by credible evidence, the trial court’s factual findings must stand. Id. If supported by its findings, the court’s legal conclusions must also stand. Id. ¶ 9 The district court’s finding that defendant was violent and assaultive during an incident in which he kicked an officer is supported by the evidence. Trial courts az-e in a unique position to assess the cz-edibility of witnesses. Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 (1998). It is not our role to second-guess a court’s decision as to whom to believe; rather, our duty is to ensure that the court’s findings are supported by the evidence. Here, the evidence of defendant’s behavior during his escalating resistance to direct orders — including testimony that he kicked an officer — supports the factual and legal determination that he was “violent or threatening.” Unlike the concurrence, we are not persuaded that the videotape of defendant’s ongoing resistance, including his repeated attempts to kick and writhe free of the guards, significantly contradicts the testimony relied on by the trial court and summarized herein. The z-ecord in this case, taken as a whole, supports the conclusion that this was an instance of substantial and repeated physical force beyond mere yelling or intimidating be 621 havior. Cf. State v. Lee, No. 2000-062, slip op. at 2 (Vt. Mar. 28, 2001) (unreported mem.) (finding defendant had not violated his conditions of probation when he followed and frightened his former partner in public). ¶ 10 Defendant’s second argument is that the court did not have the authority, after revoking his probation, to both increase the portion of his sentence to serve and reimpose his probation with added conditions. Defendant argues that although the power to take each of these actions is granted by separate subsections of 28 V.S.A. § 304(b), the powers are not cumulative because the statute uses the word “or” after each. We find no reason why the powers contained in § 304(b) must be mutually exclusive. In any event, as the State points out, the court’s authority to add probation conditions is also granted by 28 V.S.A. § 253(a), and there is no indication in that section that it cannot be used along with other powers. We conclude that the court was within its authority to impose the sentence it did. Affirmed. Footnotes [1] Additionally, the State presented evidence of other “violent or threatening” incidents from May 2004 and September 2004 in support of its complaint. The May incident involved the kicking and slamming of a door, and an alleged attempt to trip two officers as they were walking. The September incident involved the pushing of a panic button and hitting a piece of furniture with a cribbage board. Because we find that the evidence of the February 2005 incident was sufficient to sustain the State’s complaint, we do not address the other incidents.