Vermont Supreme Court upholds woman's convictions

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BENNINGTON — The Vermont Supreme Court has upheld a woman's conviction on disorderly conduct and resisting arrest charges while deciding she had previously waived her ability to challenge the verdict on the grounds put forth in her appeal.

In an Aug. 30 decision, the court affirmed a jury's verdict against Ellie Mae Morse, who was arrested by police in August 2014 outside a Bennington motel.

According to the eight-page decision, written by Justice Harold "Duke" Eaton Jr., Morse had challenged her convictions through motions for a new trial and for a judgment of acquittal, alleging the evidence was insufficient to support the conviction.

She had appealed the denial of those motions at the trial court level.

According to the decision, the incident took place near two Bennington motels on Route 7, the Southgate Motel, where two of Morse's teenage sons were staying, and the adjacent Fife and Drum Motel, where she was staying.

One of the sons "got into a dispute with the manager of the Southgate, who asked the boys to leave and then called Bennington Police," according to the facts supporting the verdict cited in the Supreme Court decision.

Four officers responded to the call around 9 p.m. and "the officers were met with yelling directed at them by the boys."

The officers then followed the boys to the Fife and Drum Motel to discuss their behavior, but as they approached, Morse, "who had been outside smoking a cigarette, stepped in front of them to block them from going into the motel," according to facts supporting the verdict.

As the incident continued, Morse was said to be "swearing and yelling at them in a loud and boisterous manner, telling them that they had no right to be there and that they had to leave, and that they could not talk to her sons."

As officers attempted to move past Morse, she reportedly "raised her arm, and the officer reacted by grabbing her arm, spinning her around, and attempting to handcuff her."

During a struggle, the woman's cigarette came into contact with an officer's forearm and she was then placed under arrest.

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According to the ruling, a jury trial was held in March 2018, and the trial judge required the prosecution to elect whether the state was asserting that the disorderly conduct charge was based upon fighting, tumultuous behavior or threatening behavior.

The state elected to charge Morse with disorderly conduct by engaging in tumultuous behavior.

Agreed beforehand

Prior to instructing the jury, the court held a jury-charge conference, during which the judge indicated he intended to charge the jury that the state was alleging the defendant had engaged in tumultuous behavior "by her statements and words."However, the prosecution "indicated concern that actions, not just words, were required to sustain a conviction for disorderly conduct based on a charge of engaging in tumultuous behavior," according to the ruling.

During the jury-charge conference with the trial judge, Morse's attorney "endorsed the proposed 'statements and words' instruction [to the jury] and disavowed any concern that more than words were required for the action to the tumultuous."

The trial court gave that instruction, and the jury returned a guilty verdict on charges of disorderly conduct and resisting arrest, while Morse was acquitted of simple assault.

"On appeal, the defendant now asserts, for the first time and directly contrary to her position below, that defendant's conviction for disorderly conduct must be reversed because it was based upon speech along," the justice wrote. "Further, defendant argues that since speech alone is insufficient to constitute tumultuous behavior, there is no probable cause for the disorderly conduct charge. Therefore, the police had no basis to arrest her and the subsequent resisting arrest charge was the fruit of this illegal arrest."

The ruling continues, "We assume without deciding that the defendant's reading of the disorderly conduct statue is correct. Nevertheless, we hold that defendant has waived her challenge to her conviction under this statute by agreeing during the trial court proceedings that the proposed 'statements and words' charge was an accurate statement of law, and thereby agreeing that words alone are sufficient to constitute disorderly conduct."

The decision also states that Morse's trial attorney agreed with the proposed instructions to the jury, despite concerns raised by the prosecution.

The court also reviewed case law concerning a determination of probable cause for disorderly conduct, concluding that "a reasonable officer could believe defendant was engaged in disorderly conduct here, satisfying our objective standard for determining whether probable cause exists. And because there was probable cause to believe the defendant engaged in tumultuous behavior, the arrest here was lawful, and the resisting arrest charge may stand."

Jim Therrien writes for New England Newspapers in Southern Vermont, including the Bennington Banner, Brattleboro Reformer and Manchester Journal. Twitter: @BB_therrien     


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