State v. Timothy Davis

VERMONT SUPREME COURT Case No. 23-AP-351
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. Timothy Davis* } APPEALED FROM:
} Superior Court, Rutland Unit,
} Criminal Division
} CASE NO. 22-CR-02368
Trial Judge: Cortland Corsones

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

Defendant appeals a conviction for violating an anti-stalking order. On appeal, he argues
that the trial court’s remedy for the State’s discovery violation was inadequate to protect his
rights and that the State presented insufficient evidence that he was within 300 feet of
complainant. We affirm.

The record indicates the following. In March 2022, defendant was charged with violating
an anti-stalking order, which required defendant to stay 300 feet away from complainant and her
residence in Rutland, where she had lived for seven years. The charges were based on
complainant’s report that on March 19 she saw defendant parked in a vehicle just outside her
apartment complex. In response, complainant called 911. A police officer responded to the
scene and determined that defendant was still in the 300-foot range. Defendant made a discovery
request in April 2022, but the State did not make any discovery disclosures. A trial was
scheduled for July 2023. On the day before trial, the State sent defense counsel an email that
suggested that there were materials the State had not disclosed. After additional inquiries from
defense counsel, the State provided an audio recording of complainant’s 911 call and a video
recording of the responding police officer’s dashboard camera, which depicted the interaction
between the responding officer and defendant.

Defendant moved to dismiss the case based on the State’s failure to disclose the audio
and video recordings as well as notes from a July 21 interview with complainant. Defendant did
not seek a continuance as a remedy given the age of the case. The court denied the motion to
dismiss. Although the court found that the discovery violation occurred, it found the failure was
inadvertent and not willful. The court found that a continuance was not appropriate because the
case had been pending for some time and would not be rescheduled for another three months.
The court concluded that the proper remedy was to exclude the objected-to evidence.1 Although
defendant also challenged the late disclosure of a certified copy of the anti-stalking order, the
court allowed the State to use the order at trial, reasoning that it was a public court order which
was referenced in the information and available to defendant.

The case proceeded to trial. At trial, the State presented testimony from the officer who
served defendant with the anti-stalking order, complainant, and the officer who responded to the
911 call. Complainant testified that on March 19 she left her apartment to take her son to school
and observed defendant outside her apartment complex in a vehicle, so she brought her son
inside and called the police. She testified that defendant was “[r]ight outside the fence” and
estimated his vehicle was within ten feet of her residence. She reported that defendant was
initially parked just outside her apartment building and then drove farther down the road.
Complainant also testified that she had resided at the same location for seven years and had
previously interacted with defendant at her residence. The responding officer testified that when
he arrived at the scene, defendant was parked on complainant’s road. He estimated that
defendant was “a little over 200 feet” from complainant’s apartment complex and definitely
within 300 feet. At the close of the State’s case, defendant moved for judgment of acquittal,
arguing that there was insufficient evidence to support a finding that he was within 300 feet of
complainant’s residence because the apartment complex was a large building and there was no
evidence to establish that the officer’s estimate was made from the exact location of
complainant’s residence. The court denied the motion, concluding that the testimony of
complainant and the officer provided sufficient evidence for the jury to find that defendant was
within 300 feet of complainant’s residence. The jury found defendant guilty of violating the
anti-stalking order.

Defendant then renewed his motion for acquittal and, in the alternative, requested a new
trial. Defendant reasserted his arguments regarding the lack of evidence to support the verdict.
In addition, he argued that a new trial was warranted given the State’s failure to comply with its
discovery obligations. Defendant claimed that the video could have aided him in preparing his
defense if it had been provided in advance. The court denied the motion, concluding that its
response to the discovery violation struck the appropriate balance of the competing interests.
The court noted that the discovery requirements served to prevent the State from obtaining an
unfair advantage over the defense and by excluding the evidence, the court alleviated that
concern while allowing the trial to proceed without additional delay. Defendant appeals.

On appeal, defendant first argues that the court erred in not dismissing the case in
response to the State’s discovery violation. When a party makes a discovery violation, “the court
may order such party to permit the discovery of material and information not previously
disclosed, grant a continuance, or enter such other order as it deems just under the
circumstances.” V.R.Cr.P. 16.2(g)(1). “The trial court has broad discretion over what sanction
to impose for a discovery violation, and our review is limited to abuse of that discretion.” State
v. Hugo, 156 Vt. 339, 344 (1991). An abuse of discretion occurs when the court “exercises it on
grounds that are clearly unreasonable or untenable.” State v. Wade, 2003 VT 99, ¶ 9, 176 Vt.

1
The court noted that defendant had not alleged any Brady violation.

2
550 (mem.). This Court has explained that discovery sanctions should not be harsher than
necessary to fulfill the goals of discovery. Id. ¶ 10.

Here, defendant asserts that dismissal was the only appropriate response because by
excluding the recordings he was deprived of the opportunity to use parts of the recordings to
bolster his defense. Defendant argues that he could have used the video to demonstrate his lack
of intent with his statements in the video that he believed he was not within 300 feet of
complainant’s residence, and to demonstrate the physical location of the incident. He argues that
he also could have used the evidence to impeach complainant. Finally, he contends that he was
confused about what incident with police formed the basis of this case and access to the video in
advance of trial would have allowed him to adequately prepare for trial.

Dismissal for a discovery violation following a jury’s guilty verdict requires a showing of
prejudice. Id. Defendant’s arguments regarding how the video could have been relevant to his
intent do not establish prejudice. Defendant was charged with violating an abuse-prevention
order under 13 V.S.A. § 1030. We have held that this charge does not require the State to show
that a defendant intended to violate the order or knew the conduct would violate the order. See
State v. Mott, 166 Vt. 188, 196 (1997), overruled on other grounds by Hinkson v. Stevens, 2020
VT 69, ¶ 22, 213 Vt. 32. Therefore, it was not relevant to the charge whether defendant believed
he was within 300 feet of complainant’s residence.

Similarly, defendant’s assertions that the video may have assisted his defense by better
depicting the area in which the incident occurred or in impeaching witnesses do not demonstrate
prejudice.2 Defendant admitted photographs of the area at trial and cross-examined complainant
regarding her memory of the incident and the location of defendant’s vehicle. Defendant has not
demonstrated that admission of the video to further these points would have benefitted him. The
video would have also bolstered the State’s theory of the case that defendant was parked close to
complainant’s residence and remained close by when the responding officer arrived. The trial
court properly exercised its discretion here to resolve the State’s inadvertent discovery violation
by excluding the undisclosed evidence for trial. This remedy properly balanced the competing
interests of safeguarding defendant’s rights, sanctioning the State for the error, avoiding further
delay in resolving the case, and protecting the public interest. See State v. Passino, 161 Vt. 515,
522 (1994) (explaining that propriety of excluding evidence in response to discovery violation is
determined by employing a balancing test that considers competing interest such as defendant’s
right to offer evidence, integrity of adversary process, “interest in the fair and efficient
administration of justice, and the potential prejudice to the truth-determining function of the trial
process” (quotation omitted)).

2
On appeal, defendant claims that there was prejudice because the late disclosure did not
allow him to adequately present his defense, including by presenting evidence from the video or
impeaching the State’s witnesses with the video. The court’s discovery sanction precluded the
State from introducing the evidence; it did not restrict defendant’s ability to offer this evidence.
To the extent defendant’s argument is that he had an inadequate period of time to decide whether
to offer portions of the video, defendant has not shown that exclusion of the video resulted in
prejudice to him.

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Defendant next argues that the court erred in denying his motion for judgment of
acquittal because the State did not present admissible evidence sufficient to show that he violated
the anti-stalking order.

When a defendant challenges the sufficiency of the evidence
supporting a conviction, we review the evidence presented by the
State viewing it in the light most favorable to the prosecution and
excluding any modifying evidence, and determine whether that
evidence sufficiently and fairly supports a finding of guilt beyond a
reasonable doubt.

State v. Robitille, 2019 VT 36, ¶ 33, 210 Vt. 202 (quotation omitted). Defendant has a “heavy
burden” to overturn a jury’s unanimous verdict. Id. (quotation omitted).

Defendant claims that the State presented insufficient admissible evidence to establish the
distance between defendant and complainant’s residence. Complainant’s testimony along with
that of the responding officer is sufficient to support the jury’s verdict that defendant was within
300 feet of complainant’s residence.

Defendant asserts that complainant’s statement that defendant was “ten feet” from her
residence was inadmissible because it was clearly speculative. At trial, the State asked
complainant to estimate how close defendant was to her residence. Defendant objected and the
court indicated that complainant could answer if she could do so “without speculating.”
Complainant stated “Ten feet. I honestly don’t know. It’s really close. I don’t know.” On
appeal, defendant argues that this statement was inadmissible because it was purely speculative.
There was no abuse of discretion in admitting this statement. See State v. Sullivan, 2017 VT 24,
¶ 27, 204 Vt. 328 (explaining that trial court’s decision regarding admission of evidence is
“highly discretionary” (quotation omitted)). Complainant’s testimony established that her
estimate of the distance was based on her own personal knowledge. See V.R.E. 602 (requiring
lay-witness testimony to be supported by evidence showing “personal knowledge of the matter”).
She testified that defendant was right outside her residence and “really close.” Although
complainant expressed uncertainty regarding the exact measurement, this did not make her
statements inadmissible. It was up to the jury to decide the weight to give to this evidence.

Defendant also contends that the police officer’s estimate regarding complainant’s
distance from the residence is insufficient to support a conviction because the officer did not
specify whether he measured that distance from complainant’s apartment or some other point in
the building. While defendant was free to attack the weight and credibility of the officer’s
testimony, the lack of specificity did not make the statement inadmissible. The officer’s
testimony corroborated complainant’s statement that defendant was within 300 feet of
complainant’s residence and this evidence was sufficient to support the jury’s verdict.

Finally, defendant argues that the court erred in denying his motion for a new trial
because the court failed to make a more detailed ruling on the motion and the cumulative effect
of the discovery violation and other concerns warranted a retrial. As explained above, the court
acted within its discretion in excluding the late-disclosed evidence in response to the discovery
violation. In addition, the evidence was sufficient to support the jury’s verdict. Given the lack

4
of errors, the trial court properly concluded that defendant had failed to demonstrate prejudice
and that a new trial was not warranted.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Harold E. Eaton, Jr., Associate Justice

Nancy J. Waples, Associate Justice

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