State v. Anatoly Kishinevski

VERMONT SUPREME COURT Case No. 24-AP-052
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

SEPTEMBER TERM, 2024

State of Vermont v. Anatoly Kishinevski* } APPEALED FROM:
} Superior Court, Orange Unit,
} Criminal Division
} CASE NO. 22-CR-00396
Trial Judge: Elizabeth D. Mann

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

Defendant appeals the trial court’s denial of his motion to modify probation conditions
imposed at sentencing. We affirm as to conditions 101, 103, 104, 107, and 114, and remand
conditions 102 and 115 for proceedings consistent with this opinion.1

In September 2022, defendant pled guilty to one count of sexually abusing a vulnerable
adult. The factual basis for the plea was that in January 2022, defendant inserted his penis into
the anus of the complainant, his former wife, after telling her that he would hurt her. The
complainant has a mental disability related to past trauma for which she receives disability
payments in Canada. Her disability impairs her ability to protect herself from abuse. At the time
of the sexual act, defendant knew that the complainant was incapable of consenting due to fear of
retribution.

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The day before oral argument in this appeal, defendant filed a motion for sanctions
alleging that the State’s appellate counsel misrepresented defendant’s probation officer’s position
on settlement discussions in an email to defendant and made various statements in the State’s
brief that are not supported by the record. The motion is denied because defendant has not
shown that he complied with the safe-harbor provision in Vermont Rule of Civil Procedure
11(c)(1)(A), which states that a motion for sanctions “shall be served as provided in Rule 5, but
shall not be filed with or presented to the court unless, within 21 days after service of the
motion . . . the challenged paper, claim, defense, contention, allegation, or denial is not
withdrawn or appropriately corrected.” Defendant also filed an ex parte motion to continue oral
argument, which the Court denied. Insofar as defendant has not demonstrated a valid reason to
prevent the State or the public from seeing the motion, the motion will be marked as publicly
accessible in the electronic case management system.
In January 2023, defendant was sentenced to five-to-twenty years, all suspended with
probation except for 363 days, which corresponded to his credit for time served. The court
imposed conditions of probation that included the following:

Condition 101 – You shall participate fully in the Vermont
Treatment Program for Sexual Abusers during the course of your
unsuspended sentence. Failure to complete said program while
incarcerated may result in a violation of your probation.

Condition 102 – You shall execute releases authorizing your
treatment provider(s) to have unrestricted communication with
your Probation Officer or designee.

Condition 103 – You shall not have any contact with your victim/s
(including letters, phone calls, tapes, videos, visits, electronically,
or any form of contact through a third party), unless approved, in
advance and in writing, by your Probation Officer or designee.

Condition 104 – I will not purchase, possess, or use pornography
or erotica. I will not go to adult bookstores, sex shops, topless
bars, etc.

…

Condition 107 – I will not own, possess or use a camera, recorder,
cell phone, or other electronic device that has recording
capabilities, without prior permission of my Probation Officer or
designee.

…

Condition 114 – I will inform all persons with whom I have a
significant relationship or close affiliation of my sex offending
history. My Probation Officer will determine who shall be
informed.

Condition 115 – I will reside at my approved residence as directed
by my assigned Probation Officer or designee.

In April 2023, defendant moved to clarify condition 103 to state that he could represent
himself in an annulment proceeding filed by the complainant in Canada. Defendant
acknowledged that his probation officer had written letters stating that he had permission to
represent himself in the proceeding, but felt they were insufficient. The court denied the motion.
Defendant filed a motion for reconsideration, which the court denied in May 2023.

In September 2023, defendant again moved to modify condition 103 to allow him to
communicate with the complainant’s counsel and to “attempt to make peace between husband
and wife.” He also moved to modify or strike the other conditions listed above. He asserted that
condition 101 should be stricken because it was impossible for him to comply; conditions 102,

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104, and 107 were overly broad; condition 114 was vague and contradictory; and condition 115
was not supported by findings sufficient to support such a broad delegation of authority.

The court held a hearing on defendant’s motion over two days in September 2023 and
January 2024. On the second day, defendant withdrew his challenge to condition 103. At the
conclusion of the hearing, the court denied the motion to modify or strike the other conditions.
The court found that condition 101 remained relevant in case defendant was reincarcerated. It
found that condition 102 was appropriate because defendant was working with several treatment
providers and “it is really critical that everyone has the same base of information to be able to
work most efficiently.” The court found that conditions 104 and 107 were specifically related to
the offense and were appropriate because defendant had recorded a video of the sexual act that
was the basis of his conviction. The court likewise concluded that condition 114 was reasonable
and appropriate. Finally, the court declined to modify condition 115, concluding that the broad
language was necessary to allow the probation office to ensure public safety. It issued a new
probation order consistent with these findings. This appeal followed.

The court may modify probation conditions upon request by the defendant. 28 V.S.A.
§ 253(a). We review the trial court’s decision on a motion to modify probation conditions for
abuse of discretion. See State v. Bubar, 146 Vt. 398, 405 (1985) (explaining that trial court “has
great discretion in setting conditions of probation”); see also 28 V.S.A. § 253(a) (stating court
“may” modify probation conditions); Vermont Nat’l Tel. Co. v. Dep’t of Taxes, 2020 VT 83,
¶ 55, 213 Vt. 421 (explaining that word “may” in statute indicates discretion). “Since defendant
was seeking relief here, he had the burden of demonstrated entitlement to remedy.” State v.
Whitchurch, 155 Vt. 134, 139 (1990) (quotation omitted). We consider each of the challenged
conditions in turn.

I. Condition 101

On appeal, defendant repeats his claim that condition 101, which requires defendant to
complete sex-offender programming during the unsuspended portion of his sentence, must be
stricken. Defendant argues that the condition is impossible for him to fulfill because he has
already served the unsuspended portion of his sentence. See Bubar, 146 Vt. at 405 (“Compliance
with probation terms may not be put beyond the probationer’s control.”). As the trial court
explained, this condition does not currently apply to defendant because he is not incarcerated.
However, the fact that the condition is contingent does not require it to be stricken. If defendant
violates his probation conditions, the court could require defendant to serve any portion of his
sentence. 28 V.S.A. § 304(b)(5). At that point, the condition will apply and defendant’s
completion of the program will be a matter within his control. Cf. State v. Hammond, 172 Vt.
601, 603, 779 A.2d 73, 76 (2001) (mem.) (reversing finding of violation of probation requiring
defendant to complete treatment program, in part because defendant was unable to participate in
program due to correctional facility’s determination of ineligibility). The court therefore did not
abuse its discretion in declining to strike this condition.

II. Condition 102

Defendant challenges condition 102, which requires defendant to execute releases
allowing his treatment providers to communicate with his probation officer, as an overbroad
intrusion into his medical privacy. Defendant’s probation officer testified that condition 102 was
critical to his ability to supervise defendant’s progress in treatment for his sex offense because it
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allowed him to communicate with all providers to make sure they were aware of defendant’s
background and current treatment goals and working in the same direction. The probation
officer also testified that defendant would have to sign releases to the Department of Corrections
to participate in community-based sex-offender treatment. The court concluded, based on this
testimony, that the condition was necessary and appropriate because defendant was working with
multiple treatment providers who needed to be able to convey information to the probation
officer about the direction defendant was being given and to assist the providers in guiding
defendant.

The court’s findings are sufficient to demonstrate that a condition requiring releases from
providers who are providing sex-offender treatment or other treatment related to defendant’s
rehabilitation is justified. However, as presently worded, condition 102 is overly broad because
it requires defendant to provide releases from any treatment provider—which could be
interpreted to include medical or other providers in addition to sex-offense and mental-health
treatment—and is not sufficiently tailored to defendant’s individual rehabilitative needs. The
court’s existing findings are not sufficient to justify such a broad intrusion into defendant’s
medical privacy. If the purpose of the condition is to facilitate cooperation and coordination
between the probation officer, defendant’s sex-offender treatment team, and any other therapists
or providers of treatment related to defendant’s offense, the court is capable of crafting a more
specific condition to achieve that end. We therefore remand this condition for the court to make
specific findings to justify the broader requirement or modify the condition. Cf. State v.
Campbell, 2015 VT 50, ¶ 27, 199 Vt. 78 (remanding residency condition because court was
capable of giving more precise standards to guide probation officer).

III. Condition 103

Defendant argues that condition 103, which prohibits him from contacting the
complainant without advance written permission from his probation officer, must be modified to
state that he is allowed to represent himself in the Canadian annulment proceeding. Defendant
expressly waived his objection to this condition below. He has therefore relinquished his right to
challenge it on appeal, and we do not consider his argument. See State v. Morse, 2019 VT 58,
¶ 7, 211 Vt. 130 (explaining that party who invites error waives right to challenge it on appeal);
cf. State v. Spooner, 2010 VT 75, ¶ 19, 188 Vt. 356 (holding party who agrees to admission of
evidence waives right to review trial court’s ruling on appeal).

IV. Condition 104

Next, defendant seeks to strike condition 104, which restricts his access to pornography,
arguing that it is overbroad and unrelated to his rehabilitation. “Vermont’s probation statute
makes it clear that a court cannot prohibit a probationer from engaging in lawful behavior unless
the prohibition relates to the defendant’s rehabilitation or public safety.” State v. Lumumba,
2018 VT 40, ¶ 32, 207 Vt. 254. “If the court imposes a condition that prohibits the defendant
from engaging in legal behavior, the condition must be reasonably related to the offender’s
rehabilitation or necessary to reduce risk to public safety.” Id. (quotation omitted). Specifically,
“a sentencing court must provide at least some support on the record for imposing a probation
condition restricting a defendant’s use of pornography, even when the defendant was convicted
of a sex offense.” Id. ¶ 34. In Lumumba, we struck a condition similar to condition 104 because
the record did not show that the defendant’s conviction of sexual assault of an adult was related
to pornography or that his individual history or behaviors supported the condition. Id. ¶¶ 36-37.
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Here, by contrast, the offense for which defendant was convicted involved defendant
filming a video of himself engaging in nonconsensual anal sex with the complainant. The
complainant and a prior girlfriend of defendant’s stated to investigators that defendant routinely
made videos of their sexual interactions for his own gratification. This record supports the
court’s determination that the condition was necessary to protect the public and ensure
defendant’s successful completion of treatment. Unlike in Lumumba, the condition was not
based on conclusory assertions about the relationship between possession of pornography and
sex offenses, but rather on defendant’s individual offense and background. It is reasonably
related to the crime and not “unnecessarily harsh or excessive.” State v. Moses, 159 Vt. 294, 298
(1992) (quotation omitted).

V. Condition 107

For similar reasons, we reject defendant’s challenge to condition 107, which requires him
to obtain permission before acquiring electronic recording devices. The probation statute
expressly allows the court to prohibit or limit a defendant’s access to computers or electronic
devices when such a condition is reasonably related to the offender’s rehabilitation or necessary
to reduce risk to public safety. 28 V.S.A. § 252(b)(18). Defendant admits that “[t]his case
involved a video recording of a sexual act between a husband and wife, who for a majority of
their relationship included the activity of recording themselves as part of their personal and
intimate relationship.” He has been accused of similar nonconsensual behavior by a previous
partner.2 Condition 107 is reasonably related to defendant’s rehabilitation. Furthermore, it is not
a complete prohibition because defendant can seek permission to obtain devices and conceded at
trial that his probation officer had granted his requests so far. It is therefore not a greater
restriction on defendant’s liberty than necessary. See United States v. Lacy, 877 F.3d 790, 794
(8th Cir. 2017) (holding that condition prohibiting defendant convicted of receiving and
distributing child pornography from using or possessing any device with internet connection was
not “greater deprivation of liberty than reasonably necessary” because restriction was related to
crime and was not complete ban (quotation omitted)).

VI. Condition 114

Defendant asserts without elaboration that condition 114, which requires him to inform
significant others of his offending history, must be stricken because it is inconsistent and vague.
As with condition 103, defendant appears to have withdrawn his challenge to this condition
during the hearing below. In addressing condition 114, the court explained that “there is a long
history of reasonable interpretation of this provision” and found that “it is entirely appropriate.”
The court stated that the probation officer would have to determine on a case-by-case basis
whether defendant was obligated to inform a person of his history, but that defendant would not
be obligated to tell people with whom he did not have a significant relationship or intent to
develop a sexual relationship. Defendant responded, “Your Honor, I will submit to the court’s
discretion on this topic,” and later stated, “I won’t take any more of the court’s time on this
topic.” These statements can reasonably be interpreted as a withdrawal of defendant’s challenge

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While defendant objects that the State did not prove that he recorded nonconsensual
sexual acts, this was because defendant entered into a plea agreement. “It would be wholly
inappropriate to ground relief on the failure of the record to show a sufficient connection
between the offense and the probation condition where defendant’s agreement to the probation
condition caused the absence of a record.” Whitchurch, 155 Vt. at 139.
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to the condition. However, even if defendant did not withdraw his challenge below, his
argument on appeal is inadequately briefed and we therefore will not consider it. See Spooner,
2010 VT 75, ¶ 19; In re Snyder Grp., Inc., 2020 VT 15, ¶ 26 n.10, 212 Vt. 168 (“Absent
extraordinary circumstances that do not exist here, this Court will not consider even
constitutional arguments that are inadequately briefed.”).

VII. Condition 115

Finally, defendant argues that condition 115, which requires defendant to live where
directed by his probation officer, must be stricken because it is an overbroad delegation of
authority to the probation officer. The State concedes that this condition is not supported by
sufficient findings as required by this Court’s decisions in State v. Cornell, 2016 VT 47, ¶¶ 8-13,
202 Vt. 19, and prior cases. We therefore strike this condition and remand for the trial court to
provide additional justification for the condition, modify it, or remove it. See id. ¶ 13.

Affirmed as to conditions 101, 103, 104, 107, and 114. Remanded as to conditions 102
and 115 for proceedings consistent with this opinion.

BY THE COURT:

Paul L. Reiber, Chief Justice

Harold E. Eaton, Jr., Associate Justice

Nancy J. Waples, Associate Justice

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