Nelson v. State

VERMONT SUPERIOR COURT CIVIL DIVISION
Bennington Unit Case No. 20-CV-00711
207 South St
Bennington VT 05201
802-447-2700
www.vermontjudiciary.org

Morris Nelson v State of Vermont

ENTRY REGARDING MOTION
Title: Motion for Summary Judgment (Motion: 9)
Filer: Jared Christopher Bianchi
Filed Date: April 14, 2025

Petitioner, Morris Nelson, filed a petition for post-conviction relief due to ineffective
assistance of counsel on charges for aggravated sexual assault, and sexual assault of a minor
entrusted to Petitioner’s care by authority of law. Petitioner claims his counsel failed to
adequately represent him at trial and defense counsel’s conduct fell below the standards of
professional competence at two points. First, defense counsel failed to obtain or present any
evidence showing the victim had not been entrusted to Petitioner’s care by authority of law, the
essential element of the final charge in his case. Second, defense counsel did not impeach a
witness for the prosecution with video evidence from the interview the witness described. To
support these contentions, Petitioner proffered a report by an expert expected to testify at trial.
Respondent moved for summary judgment pursuant to Vermont Rule of Civil Procedure 56. For
the reasons stated below, Respondent’s motion for summary judgment is granted.

STANDARD FOR SUMMARY JUDGMENT

In addressing a motion for summary judgment, the Court derives the undisputed facts
from the parties’ statements of fact under V.R.C.P. 56(c). Facts in the moving party’s statement
are deemed undisputed when supported by the record and not controverted by facts in the
nonmoving party’s statement. Boulton v. CLD Consulting Eng’rs, Inc., 2003 VT 72, ¶ 29, 175
Vt. 413. As this case is one for post-conviction relief, the summary judgement standard is
essentially the same as it would be in a civil complaint. In re Barrows, 2007 VT 9. ¶ 17, 181 Vt.
283 (“These general rules of summary judgment are applicable to PCR cases.”).

Summary judgment under V.R.C.P. 56 is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Id. A fact is
material when the fact would affect the outcome of a case. Civetti v. Turner, 2022 VT 64, ¶ 19,
217 Vt. 411 (quoting Gates v. Mack Molding Co., 2022 VT 24, ¶ 14, 216 Vt. 379). In
determining if there is a genuine issue as to any material fact, the Court “will accept as true the
allegations made in opposition to the motion for summary judgment, so long as they are
supported by affidavits or other evidentiary material.” Robertson v. Mylan Labs., Inc., 2004 VT
15, ¶ 15, 176 Vt. 356. The Court will also give the nonmoving party “the benefit of all
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reasonable doubts and inferences.” Id. However, the nonmoving party may not “rely on bare
allegations alone to meet the burden of demonstrating a disputed issue of fact.” Webb v. Leclair,
2007 VT 65, ¶ 14, 182 Vt. 559 (mem.). Speculation is insufficient. Palmer v. Furlan, 2019 VT
42, ¶ 10, 210 Vt. 375. Nor may the nonmoving party rely on a dispute over trial strategy to stand
in the place of disputed material fact. Morais v. Yee, 162 Vt. 366, 371–72, 648 A.2d 405, 409
(“Plaintiffs may rely on affidavits of experts to defeat a summary judgment motion, but the
affidavit still must meet the Rule 56(e) requirement that the nonmoving party present specific
facts demonstrating a genuine issue for trial.”); cf. Cassani v. Hale, 2010 VT 8, ¶ 23, 187 Vt. 336
(“Legal conclusions and opinions cannot be the proffered basis for rendering summary
judgment.”). The facts discussed herein are therefore deemed to be undisputed, except as noted
or otherwise qualified.

FACTS

In June 2017, a jury returned a guilty verdict against Petitioner on charges of aggravated
sexual assault as part of a common plan or scheme, 13 V.S.A. § 3253(a)(9), sexual assault of a
victim under the age of eighteen entrusted to his care by authority of law, 13 V.S.A. § 3252(d),
and sexual exploitation of a minor, 13 V.S.A. § 3258(c). Resp’t’s Statement Undisputed
Material Facts Supp. State’s Mot. Summ. J. at ¶ 1; State v. Nelson, 2020 VT 94, ¶ 8, 213 Vt. 368.
Petitioner appealed the conviction to the Vermont Supreme Court, claiming 13 V.S.A.
§ 3253(a)(9) and 13 V.S.A. § 3252(d) were duplicative, and 13 V.S.A. § 3252(d) and 13 V.S.A.
§ 3258(c) were also duplicative in a different manner. Nelson, 2020 VT 94, ¶ 1. Additionally,
Petitioner challenged that the element of entrustment “by authority of law” could not be found as
there had been no formal transfer of legal decision-making authority. Id. The Supreme Court
concluded that the 13 V.S.A. § 3258(c) charge placed Petitioner in double jeopardy given the
facts in the case and vacated the conviction for sexual exploitation of a minor, while affirming
the other two charged counts. Pet’r’s Resp. State’s Statement Material Facts at ¶ 1; Resp’t’s
Statement at ¶ 3; Nelson, 2020 VT 94, ¶¶ 40–42. The Supreme Court also found Petitioner’s
interpretation of the necessary standard of proof for entrustment by authority of law to be too
narrow, and that a reasonable jury could conclude entrustment occurred based upon the
testimonial evidence presented. Nelson, 2020 VT 94, ¶¶ 43–50.

These are the facts of the underlying criminal case which are relevant to the ineffective
assistance of counsel claims. The police interviewed the victim during the investigation. Resp’t
Statement at ¶¶ 16–20; Resp’t’s Ex. 4 Trial Tr. at 29–31. During the first interview, the victim
denied that Petitioner sexually assaulted her. Resp’t’s Statement at ¶ 16; Resp’t’s Ex. 4 at 31, 40,
104. From the second interview onward, however, the victim stated Petitioner assaulted her in a
variety of locations both in-state and out-of-state. Resp’t’s Statement at ¶ 20; Resp’t’s Ex. 4 at
106, 113, 138–39. Respondent called the detective who conducted the first interview, Detective
Zink, to testify during trial. Resp’t’s Ex. 4 at 25. Detective Zink testified that during the initial
interview the victim was confused, but cooperative and open. Resp’t’s Statement at ¶ 16;
Resp’t’s Ex. 4 at 30. However, as Detective Zink questioned the victim about rumors of a
relationship with Petitioner, Detective Zink testified that the victim’s demeanor became nervous.
Resp’t’s Statement at ¶ 16; Resp’t’s Ex. 4 at 30–31. Petitioner’s attorney cross-examined
Detective Zink but did not attempt to impeach Detective Zink’s statements regarding the initial
interview. Resp’t’s Ex. 4 at 35–38.
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As to the other ineffective assistance of counsel claim, the victim testified that New
Hampshire’s equivalent of the Department of Children and Families1 had to be involved in
allowing her to live at Petitioner’s home with himself and his former wife, treating Petitioner and
his wife as though they were her “Permanent Caring Adults.”2 Resp’t’s Statement at ¶ 12;
Resp’t’s Ex. 4 at 77–78, 111; State v. Nelson, 2020 VT 94, ¶ 50. A program coordinator at the
victim’s school testified she believed the state of New Hampshire allowed the victim to meet
with Petitioner and his former wife after Petitioner stopped working at the school where he met
the victim. Resp’t’s Ex. 4 at 50. Petitioner’s former wife also testified at trial that the couple met
with the victim’s caseworker at “New Hampshire DCF” to approve of the living arrangement
Petitioner sought. Resp’t’s Statement at ¶ 12; Resp’t’s Ex. 4 at 170–71; Nelson, 2020 VT 94,
¶ 50. Petitioner’s former wife worked for Vermont DCF and testified to the issues involved with
acting as caretakers for a child in the custody of another state’s child-protection system. Resp’t’s
Ex. 4 at 170–71; Nelson, 2020 VT 94, ¶ 50. She also testified to how Petitioner, the victim and
herself had chosen to go into an arrangement with “New Hampshire DCF” where the Petitioner
and Petitioner’s wife provided the victim with a place to live on certain days of the week as the
victim was close to eighteen and would age out of certain child protection services in New
Hampshire. Resp’t’s Ex. 4 at 170–71; Nelson, 2020 VT 94, ¶ 50. Petitioner’s attorney moved
for a judgement as a matter of law on the basis that there was no evidence of a formal
entrustment, nor proof that New Hampshire’s DCF had gone through formal proceedings to grant
Petitioner and his wife any form of legal custody. Resp’t’s Ex. 4 at 185. The trial court denied
the motion. Resp’t’s Ex. 4 at 188.

Petitioner, through different counsel, appealed the issue that there was a lack of evidence
of entrustment to the Vermont Supreme Court. Resp’t’s Statement at ¶ 4; Nelson, 2020 VT 94,
¶ 1. The Vermont Supreme Court found that “entrustment by authority of law” within 13 V.S.A.
§ 3252(d) was intended to be broad enough to encompass situations such as when a state’s child
protection agency allows someone to act as a caretaker of a child under the agency’s custody
after, as stated by Petitioner’s former wife, meeting with the child’s case worker to come up with
a plan. Nelson, 2020 VT 94, ¶ 49–50. Therefore, testimonial evidence of the kind provided by
multiple witnesses throughout the trial was sufficient for a reasonable jury to find that the victim
had been entrusted to Petitioner’s care by authority of law. Resp’t’s Statement at ¶ 5; Nelson,
2020 VT 94, ¶ 50.

Respondent’s Statement of Undisputed Material Facts in Support of State’s Motion for
Summary Judgment and related exhibits support these facts. Petitioner’s Response to the State’s
Statement of Material Facts admits all the above facts, though Petitioner disputes Respondent’s
¶ 30, which states Petitioner’s expert “Williams does not state that he employed any data or
methodology in his opinion.” Resp’t’s Statement at ¶ 30. Petitioner denies this claim by

1 As noted by the Vermont Supreme Court, the agency in New Hampshire which serves the same role as the
Department of Children and Families in Vermont is called the Division for Children, Youth & Families. However,
the witnesses referred to this agency as “New Hampshire DCF” throughout the trial. 2020 VT 94, n.1.
2 As noted on appeal in State v. Nelson, New Hampshire’s Division uses slightly different terminology than used by
the witnesses at trial. The status in New Hampshire is “Primary Caring Adult,” commonly known as PCAs. 2020
VT 94, n.2.

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pointing out that Petitioner’s expert detailed all of the data he reviewed and stated that he used
his training as a criminal defense attorney and the legal standards set by both the United States
Supreme Court and the Vermont Supreme Court to provide his conclusions about the reviewed
data. Pet’r’s Resp. State’s Statement Material Facts at ¶ 30, Resp’t’s Ex. 6 Report David J.
Williams at ¶ 8. This is a legal dispute over the validity of Attorney Williams’ opinion as an
expert. These statements raise the question of whether Petitioner’s expert relied on data to
prepare his report and has some form of methodology. Both of these issues are important as to
the admissibility of the expert’s opinion. However, the admissibility of Petitioner’s expert
witness in the immediate matter does not raise a question as to whether Petitioner received
ineffective assistance of counsel at trial. Legal disputes are not disputes over material facts for
the purposes of summary judgment. Therefore, the case is ready for summary judgment.

ANALYSIS

To succeed in an ineffective assistance of counsel claim, a petitioner must prove by a
preponderance of the evidence that their attorney’s actions “fell below an objective standard of
performance informed by prevailing professional norms.” In re Hyde, 2015 VT 106, ¶ 17, 200
Vt. 103. Falling below an objective standard of performance cannot be found merely by an
argument that a petitioner’s attorney did not follow an effective trial strategy. Any side in a trial
may lose a case, even with the best strategy in the given circumstances. The question in
Vermont “is whether trial counsel had any reasonable strategy and whether they pursued it with
adequate preparation and diligence.” In re Dunbar, 126 Vt. 209, 213, 647 A.2d 316, 320 (1994).
A petitioner must also show that this deficient performance reasonably affected the outcome of
the case. In re Russo, 2010 VT 16, ¶ 16, 187 Vt. 367 (“A PCR court making this inquiry must
ask if the defendant has met the burden of showing that the decision reached would reasonably
likely have been different absent the errors.”) (internal quotation omitted); Strickland v.
Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984) (“The defendant
must show that there is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.”).

With these standards and the claims of Petitioner in mind, the ultimate issue in this case
is whether a different result would have been rendered had defense counsel taken different
actions on the two points Petitioner identifies.

Petitioner’s first claim is that trial counsel failed to obtain or present evidence that no
authority of law, primarily New Hampshire’s Division of Children, Youth & Families, entrusted
the victim to his care. Proposed Second Am. Pet. Post-Conviction Relief at ¶ 13–15. This claim
is based upon the previously litigated theory that the element of entrustment “by authority of
law” as laid out in 13 V.S.A. § 3252(d) required some proceeding, or entrustment with legal
decision-making authority. See State v. Nelson, 2020 VT 94, ¶ 43 (“We conclude that the State
did prove that complainant was entrusted to defendant's care “by authority of law,” and that, in
doing so, it was not required to prove that defendant had legal decision-making authority for
complainant.”). Petitioner states in his petition “Defense counsel’s failure to obtain and present
evidence that would disprove one of the elements of Count 2 (sexual assault of a child entrusted
to the actor’s care by authority of law) fell below reasonable standards of professional
competence.” Second Am. Pet. at ¶ 16 (emphasis added).
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The purpose of post-conviction relief is not to re-litigate a case, but correct errors when
there has been a serious miscarriage of justice. In re Hemingway, 2014 VT 42, ¶ 7, 196 Vt. 384
(“Post-conviction relief is a limited remedy, intended to correct fundamental errors in the judicial
process.” (internal quotation marks omitted)). This Court will address what remains of the claim
outside of the theory of the previous litigation, whether or not counsel fell below the standards of
the profession when choosing to challenge this element of the claim through testimonial
evidence, and a motion for judgment as a matter of law on the issue.

As the Supreme Court has held that the testimony of the involvement of New
Hampshire’s Division of Children, Youth & Families in the decision where the victim lived part
time with Petitioner was enough to prove the legal element, this Court fails to see what proof
Petitioner’s defense counsel could have obtained beyond the testimonial evidence to disprove the
element. The evidence at trial established the Division met with Petitioner, victim, and
Petitioner’s former wife to come to an arrangement that was short of formal proceedings.
Resp’t’s Statement at ¶ 12; Resp’t’s Ex. 4 at 170–71; Nelson, 2020 VT 94, ¶ 50. Petitioner does
not challenge that such a meeting occurred. Testimony to the fact that the arrangement was
informal was elicited and presented to the jury by both Respondent and Petitioner. Resp’t’s Ex. 4
at 77, 111, 170-71. The lack of process to transfer the Division’s legal authority over the victim
to Petitioner and his former wife is not enough to disprove the entrustment element of 13 V.S.A.
§ 3252(d) in those circumstances. Nelson, 2020 VT 94, ¶ 49 (“Nor would they [the statutorily
impermissible power dynamics] be dependent on whether defendant was officially designated as
a PCA by court order or merely acting as a caretaker pursuant to formal authority from New
Hampshire DCF.”).

Not being able to disprove an element of a criminal case because the facts fulfill the
element is not below the reasonable standards of a defense attorney’s profession. Nor is it a
fundamental error in the judicial process. Defense counsel pursued the theory that the language
of the charging statute required proof of some form of proceeding or transfer of decision-making
authority using testimonial evidence, moved for judgment as a matter of law on the matter, and
defense counsel’s actions maintained Petitioner’s ability to appeal on that issue. This does not
fall below the reasonable standards of a defense attorney’s profession.

Petitioner’s second claim is that trial counsel did not impeach Detective Zink regarding
his characterization of his initial interview with the victim. Second Am. Pet. at ¶ 22. To support
this claim, Petitioner retained the use of an expert witness, Attorney Williams, who prepared a
report detailing how the expert believed defense counsel’s actions fell below the acceptable
standard of the profession. See Resp’t’s Ex. 6; Pet’r’s Attach. Ex. 6 CV David Williams. Even
giving Petitioner’s expert’s report the benefit of all doubts and reasonable inferences, the report
only details the various ways in which Attorney Williams would have chosen to pursue a more
aggressive trial strategy. Resp’t’s Ex. 6 at 8–13. An ineffective assistance of counsel claim may
not rest on merely questioning trial strategy. In re Dunbar, 126 Vt. 209, 215 (1994) (“Although
other counsel might have tried the case differently, the critical evidence with which defendant is
concerned was put before the jury, albeit not with the emphasis he now argues.”).

Review of the transcripts of the trial show defense counsel pursued many of the strategies
outlined by Attorney Williams, if in different ways. Compare, e.g., Resp’t’s Ex. 4 at 112 (cross
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examination of the victim about inconsistent interviewing statements) with Resp’t’s Ex. 6 at 10
(discussing the ways in which video recordings could have been used to show the victim made
inconsistent interviewing statements). It appears that defense counsel was following a particular
trial strategy, one to cast doubt on the non-consensual nature of the Petitioner’s actions and
inform the jury that no proceeding occurred to transfer legal decision-making authority over
victim to Petitioner. Both of these strategies failed to convince the jury, but that is not a lack of
strategy, or ineffective assistance.

Additionally, even assuming defense counsel’s actions fell below the professional
standard for defense counsel, Petitioner fails to show how impeaching one interviewing detective
would fundamentally alter the outcome of this case. “In determining whether petitioner was
prejudiced, we must take into account all of the evidence before the jury.” In re FitzGerald,
2020 VT 14, ¶ 50, 212 Vt. 135. Determinations of credibility are left to the jury, who have heard
more than one witness in isolation. State v. Norton, 134 Vt. 100, 103, 353 A.2d 324, 326 (1976)
(“The credibility of the witnesses and the weight to be given their testimony is the sole province
of the jury.”). Respondent put two detectives on the stand, the second being the detective who
conducted the second interview with the victim, as well as the victim herself. The jury would
still hear the evidence of the first interview from the victim, who testified to her side of the
interactions, and why her statements were inconsistent at the interview, and the testimony of the
second interviewing detective. After impeachment, the jury still would have the testimony of the
first detective with the knowledge that his characterizations of his interview with the victim
might have been inconsistent—or possibly consistent, depending on the jury’s perception—with
the recorded interview. Given that there were multiple sources of evidence about the interactions
with the interviewing officers, Petitioner cannot prove that the jury would have decided
differently, even had defense counsel impeached one of the interviewing officers.

ORDER

For the foregoing reasons, Respondent’s Motion for Summary Judgment is granted.

Signed electronically September 25, 2025 pursuant to V.R.E.F 9(d).

_________________________________________
David Barra
Superior Court Judge

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