State v. Mark Sterling

ENTRY ORDER
SUPREME COURT CASE NO. 26-AP-222
JUNE TERM, 2026
State of Vermont } APPEALED FROM:
}
}
v. } Superior Court, Chittenden Unit,
} Criminal Division
}
Mark Sterling } CASE NO. 26-CR-05593
Trial Judge: Timothy C. Doherty, Jr.
In the above-entitled cause, the Clerk will enter:
Defendant Mark Sterling appeals from a superior court order holding him without bail
pending trial, pursuant to 13 V.S.A. § 7553a. He argues that the offense for which the State is
seeking to hold him without bail (“HWOB”), aggravated stalking while in possession of a deadly
weapon pursuant to 13 V.S.A. § 1063(a)(5), does not contain an element involving an act of
violence against another; that the State has not established that the evidence of his guilt is “great”;
and that the State cannot establish by clear and convincing evidence that he poses a danger to the
public or the complaining witness that cannot be managed through the imposition of conditions of
release. Alternatively, Defendant contends that the statutory scheme is unconstitutionally vague.
We reverse and remand.
On June 3, 2026, the State charged defendant with one count of aggravated stalking while
possessing a deadly weapon under 13 V.S.A. § 1063(5). Additionally, he was charged with
violation of an abuse prevention order, aggravated stalking in violation of a court order, unlawful
possession of a firearm, and aggravated operation of a motor vehicle without the owner’s consent.
The State moved to hold defendant without bail under § 7553a on the basis of the aggravated-
stalking-with-a-deadly-weapon charge.1 The trial court held a hearing on the State’s motion and
determined to hold defendant without bail. Defendant timely requested a new evidentiary hearing
before this Court. See 13 V.S.A. § 7556(d) (“A person held without bail under section 7553a of
this title prior to trial shall be entitled to an independent, second evidentiary hearing on the merits
of the denial of bail, which shall be a hearing de novo by a single Justice of the Supreme Court
forthwith”); V.R.A.P. 9(b) (outlining procedures for review of denial of release under 13 V.S.A.
§ 7553a).
1 Under such circumstances, Chapter II, § 40(3) of the Vermont Constitution and 13 V.S.A.
§ 7553b also require that a defendant’s case proceed to trial within sixty days, absent agreement
to a greater period of time by a defendant or other delay attributable to him or her.

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This Court held a hearing on the appeal on July 2, 2026. It makes the following
determinations.
I. The Evidence Presented
At the July 2 hearing, the parties stipulated to the admission of the transcript from the initial
hold-without-bail-hearing, which was held on June 8 and 15, 2026, and the admission of Exhibits
1 through 3 from that hearing. The Court makes the findings set out below from that evidence.2
The complaining witness in this matter, B.S., sought and obtained a temporary and a final
relief-from-abuse-order against defendant in May 2026. The parties are former spouses.
Defendant did not appear at the relief from abuse hearing, and the final order issued by default.
The orders precluded defendant from contacting B.S. and from being within 300 feet of her or her
residence, which was also his former home. It also required that he surrender all firearms to law
enforcement. Defendant was properly served with the orders.
At the time the relief from abuse orders issued, defendant was homeless. On or about June
2, 2026, he stole a dump truck and proceeded to B.S’s residence. He parked the vehicle on the
road, went up to the door, and knocked. B.S. came to the door. Defendant inquired as to whether
his mail was still at the house. He focused on a credit card that he needed and that he believed
had been delivered to the home. B.S. told defendant that his mail had been returned the Post
Office. She offered to check her car to ensure no mail was there and did so without incident. No
physical contact or threats occurred between the two. B.S. credibly stated that defendant was non-
confrontational during the incident. Defendant left. At the time of this event, defendant had a
backpack that contained a long-handled knife and a handgun. The knapsack remained in the dump
truck parked on the road during the encounter.
B.S. left for work but turned on her surveillance cameras. She had a coworker watch the
cameras for a period of time. At a later point in the day, defendant returned to the house and
parked in the driveway. He entered the home. He would later tell law enforcement that he had
been to the Post Office, and his mail was not there. He stated that he entered the residence in
search of his mail. He then left the house. B.S. was not present at the property during this second
visit. The backpack containing the weapons remained in the dump truck in the driveway during
this event. B.S. stated that defendant did not disturb anything in the home or steal anything. She
believed he was desperate to find his mail and credit card.
2 In State v. Madison, 163 Vt. 360, 372 (1995), this Court concluded that “review de novo”
under the Constitution and 13 V.S.A. § 7556 did not automatically entitle a defendant to a second
evidentiary hearing regarding hold-without-bail orders under § 7553a but that additional evidence
could be heard based on a showing of “good cause.” Vermont Rule of Appellate Procedure 9(b)
was adopted to mirror that interpretation. V.R.A.P. 9(b)(1)(E). The Legislature later amended the
law to state that defendants were entitled to a full, de novo evidentiary hearing before a single
justice under such circumstances. 13 V.S.A. §§ 7555a(8)-(9), 7556(d). The language of V.R.A.P.
9(b) was not changed. Here, the parties agreed on the admission of the transcript of the initial
hearing and to the admission of all exhibits. As a result, this Court has no present occasion to seek
to harmonize or prioritize the directives of § 7556(d) and V.R.A.P. 9(b).

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The State’s basis for pursuing the instant charge is its assertion that, by returning to the
residence twice in violation of the abuse prevention order, defendant interfered with B.S.’s
property. The State maintains that those two visits establish a “course of conduct” under Vermont
law, 13 V.S.A. § 1061(1)(A), and that defendant knew or should have known it would cause a
reasonable person in B.S.’s position to suffer substantial emotional distress. See 13 V.S.A.
§ 1061(4) (defining “stalk[ing]” as “engag[ing] purposefully in a course of conduct directed at a
specific person that the person engaging in the conduct knows or should know would cause a
reasonable person . . . substantial emotional distress”). The State also asserts that defendant
possessed a deadly weapon by having a gun and a knife in his backpack during the two trips to the
residence. See id. § 1063(a)(5) (“A person commits the crime of aggravated stalking if the person
intentionally stalks another person, and . . . had a deadly weapon . . . in his or her possession while
engaged in the act of stalking.”).
The State offered the sworn and recorded statement of B.S. to support its request to HWOB.
She averred that, while the parties had separated in 2025, defendant was at B.S.’s home from time
to time and assisted with the parties’ children. In February 2026, he began acting oddly and out
of character. B.S. attributed this to escalating mental health issues and a renewed consumption of
alcohol. Defendant then lost his job, and his residence, rendering him homeless. He came to
B.S.’s home off and on for assistance and support, which B.S. provided. During some of these
visits he became angry and swore at B.S. and said she had lied to him about certain events. B.S.
became concerned about defendant’s potential suicidality for a number of reasons, including that
defendant stated during a drive that he wanted to jump out of a moving car and was also seen
walking down the middle of a busy street. Additionally, B.S. became concerned for her own safety
after defendant’s erratic behavior. She installed surveillance cameras and changed the locks on
her home.
The State offered no evidence establishing a history of physical harm or threats of violence
by defendant towards B.S. B.S. stated that defendant had never tried to harm her or their children.
Defendant has no record of criminal convictions and no failures to appear for criminal court
proceedings. He has additional pending charges for unrelated misdemeanors. Although he did
not appear for his arraignment on those charges, the State concedes that he was in the hospital at
the time of that proceeding. During the month leading up to the instant charges, it appears that
defendant was in the hospital voluntarily multiple times for mental health reasons, but it is unclear
whether he was ever evaluated during those visits.
Defendant is currently being held without bail. If he were not incarcerated, defendant
would be homeless. Defendant has been in custody since early June. The State offered no
evidence that defendant has engaged in misconduct, assaultive or threatening behavior, or incurred
any disciplinary violations since coming into custody.
II. Analysis
The State has asked the Court to hold defendant without bail under 13 V.S.A. § 7553a
based on the charge of aggravated stalking with a deadly weapon. Under Chapter II, § 40(2) of
the Vermont Constitution and § 7553a, the State’s request involves a multi-step analysis. First,
the charge lodged against defendant must be “a felony, an element of which involves an act of
violence against another person,” as that phrase is used in § 7553a and the identical Constitutional

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provision on which it is based. 13 V.S.A. § 7553a(a); Vt. Const. ch. II, § 40(2). Second, the
evidence of guilt as to that offense must be great. 13 V.S.A. § 7553a(a); Vt. Const. ch. II, § 40(2).
Third, the State must establish both that “the person’s release poses a substantial threat of physical
violence to any person and that no condition or combination of conditions of release will
reasonably prevent the physical violence.” 13 V.S.A. § 7553a(a); Vt. Const. ch. II, § 40(2).
Finally, despite those findings, a court must consider whether to exercise discretion to release
defendant in light of the factors in 13 V.S.A. § 7554 or other considerations. State v. White, 2020
VT 62, ¶ 10, 212 Vt. 658 (mem.) (explaining that courts have “narrow” discretion under such
circumstances).
Here, the Court will address only the first and third prongs of the analysis as those are
dispositive of the appeal. Similarly, in light of the Court’s disposition, it also need not reach
defendant’s argument that the statutory scheme is unconstitutionally vague.
A. Felony Involving an Act of Violence
The State maintains that the charged offense, aggravated stalking under § 1063(a)—and
particularly § 1063(a)(5)—is a felony an element of which involves an act of violence. Defendant
disagrees.
In the Court’s view, this question is largely resolved and controlled by the Court’s prior
ruling in State v. Beldiman, No. 25-AP-211, 2025 WL 1993825 (Vt. July 16, 2025) (unpub. mem.),
https://www.vermontjudiciary.org/media/19213. There, a single justice concluded that the crime
of aggravated stalking was not a felony that involves an act of violence. Id. at *7. The Court
reviewed earlier decisions, including State v. Perron, No. 24-AP-163, 2024 WL 3416096 (Vt. July
12, 2024) (unpub. mem.), https://www.vermontjudiciary.org/media/18069, and determined that,
even using the broad definition of “violence” defined therein, aggravated stalking would not
suffice. Beldiman, 2025 WL 1993825, at *6-7. Key aspects of the ruling focused on the fact that
the crime of aggravated stalking can be established by a defendant engaging in a course of conduct
that solely interferes with property and that the mens rea of the crime could be satisfied by proof
that a defendant “knew or reasonably should have known” that such interference would cause a
reasonable person to suffer substantial emotional distress. Id. The Court concluded that those
aspects of the crime precluded a finding that the elements of aggravated stalking required there to
have been the type of “ ‘abusive or unjust use of power’ ” towards another person identified by
Perron as a basis for finding an act of violence. Id. (quoting Perron, 2024 WL 3416096, at *4, 6)
(noting that the negligence standard established by the stalking statute “is a considerably lesser
standard than other situations where the Court has found attempts or threats sufficient to constitute
acts of violence”); c.f. Counterman v. Colorado, 600 U.S. 66, 79–80 (2023) (finding negligence
standard insufficient to provide adequate protection of First Amendment interests in stalking case
involving threats made by defendant).
Despite the State’s protests, this Court’s later decision in State v. Shores, 2025 VT 62, __
Vt. __ , does not hold otherwise and does not undermine the determination in Beldiman. First,
Shores approved of the standard enunciated in Perron and Madison, which were precedents relied
upon by Beldiman. Compare Shores, 2025 VT 62, ¶¶ 14, 19 (citing Perron, 2024 WL 3416096, at
*4-5, and Madison, 163 Vt. at 395, for definition of “violence” for purposes of Chapter II, § 40(2)
of Vermont Constitution and 13 V.S.A. § 7553a), with Beldiman, 2025 WL 1993825, at *6-7

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(citing same definitions). Second, despite overruling, a separate case, State v. Madigan, No. 2011-
103, 2011 WL 4974812 (Vt. Mar. 25, 2011) (unpub. mem.), https://www.vermontjudiciary.org/
sites/default/files/documents/eo11-103.bail.pdf, Shores did not overrule the holding of Beldiman
or indicate that its ruling was suspect. Third, Shores confirmed one of Beldiman’s primary
holdings—that a legislative direction that a crime be interpreted to be an act of violence is
“instructive and persuasive, but not determinative” of whether a crime meets the constitutional
definition of an act of violence. Shores, 2025 VT 62, ¶¶ 8, 31, 31 n.5. Fourth, Shores also
underscored that determining whether the elements of a crime require an act of violence can
involve an examination of the linkage between the conduct and the mental state needed to support
the crime. Id. ¶ 28 (“This forceful exploitation and violation of a child’s freedom with the intent
of arousing, appealing to, or gratifying the lust, passions, or sexual desires of such person or of
such child, § 2602(a)(1), is as an abusive and unjust use of power over a child and thus fits squarely
within the definition of violence employed by this Court.” (emphasis added) (quotation omitted)).
The State’s additional contention that the instant matter is not controlled by Beldiman
because Beldiman was decided under 13 V.S.A. § 1063(a)(1), whereas the charge brought here,
pursuant to 13 V.S.A. § 1063(a)(5), requires that the defendant possess a deadly weapon, is not
persuasive. It is true that the instant crime requires proof that the defendant possessed a weapon
while the stalking behavior occurred. See 13 V.S.A. § 1063(a)(5) (“A person commits the crime
of aggravated stalking if the person intentionally stalks another person, and . . . had a deadly
weapon . . . in his or her possession while engaged in the act of stalking.”). The portions of the
crime that this Court found troubling in Beldiman, however—that a conviction may be had based
solely on interferences with property that a defendant “should have known” would cause harm—
remain elements of the crime charged in this case, and the Beldiman reasoning that these elements
do not amount to “violence” continues to apply. As a result, the additional requirement that a
weapon be present is insufficient to take this matter out of the governing shadow of Beldiman.3
3 No doubt, as Beldiman acknowledges, many possible factual scenarios that may fall
within the crime of aggravated stalking would unquestionably involve acts of violence. The Court,
however, must consider the essential elements of the crime and the outer ambits of the statutory
language. See State v. Bulson, 2024 VT 15, ¶ 10, 219 Vt. 631 (mem.) (analyzing statute’s plain
language to determine whether any of crime’s elements involve act of violence). The proper
inquiry is the statutory elements of the crime that the State must prove “and not the evidence that
will be offered to prove the felony.” State v. Filippo, 172 Vt. 551, 532 (2001) (mem.). Here, for
example, the statutory elements could proscribe conduct by a defendant who interferes with a
website or a sign erected on a vacant lot honoring a person’s late best friend where the defendant
should have known those actions would cause a reasonable person substantial emotional distress.
Consistent with Beldiman, such conduct does not fall within the constitutional understanding of a
violent act under Chapter II, § 40(2).

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In the end, Beldiman controls: aggravated stalking is not a felony crime, “an element of
which involves an act of violence.” Vt. Const. ch. II, § 40(2); 13 V.S.A. § 7553a(a).4 Under State
v. Downing, 2020 VT 97, ¶¶ 35-36, 213 Vt. 643 (mem.), this Court is bound to follow that ruling.5
B. Clear and Convincing Evidence of Danger to Others and Inability
of Conditions of Release to Control
Even if there were some daylight between Beldiman and this case, the State’s request to
HWOB would fail on the evidence presented. Holding a defendant without bail is an exception to
Vermont’s “usual presumption in favor of [pretrial] release.” State v. Auclair, 2020 VT 26, ¶ 23,
211 Vt. 651. To hold an individual under § 7553a and the Vermont Constitution, the State must
establish by clear and convincing evidence both “that the person’s release poses a substantial threat
of physical violence to any person and that no condition or combination of conditions of release
4 That is not to say that the State’s arguments against the outcome in Beldiman are
insubstantial. They are not. Beldiman relied, in part, on Madigan, which was overruled by Shores.
See Beldiman, 2025 WL 1993825, at *4 (citing Madigan); Shores, 2025 VT 62, ¶ 27 (overruling
Madigan). Additionally, the fact that the Legislature enacted the crime of aggravated stalking
around the same time as it adopted § 7553a and Chapter II, § 40(2) of the Vermont Constitution is
also worthy of consideration. See 1993, No. 95, § 1 (codifying 13 V.S.A. § 1063 in 1993 with
instruction that it be considered a violent act for bail purposes); 13 V.S.A. § 7555a(1) (explaining
“[d]uring the 1991-2 and the 1993-4 sessions, the General Assembly adopted Proposal 7, which
proposed to amend section 40 of Chapter II of the Vermont Constitution to allow a judge to order
a person charged with a felony involving an act of violence to be held without bail” when certain
conditions are met); 1993, , No. 143 (Adj. Sess.), § 2 (codifying 13 V.S.A. § 7553a in 1994).
There are powerful countervailing points as well, however. Though citing Madigan,
Beldiman ultimately applied Perron and Madison, which are the same cases that informed the
Shores ruling. Beldiman, 2025 WL 1993825, at *6. Further, the original crime of aggravated
stalking did not allow a conviction based on proof that the defendant “should have known” her
actions would cause harm to a reasonable person. Compare 13 V.S.A. § 1061(defining current
crime of stalking to require proof that “person engaging in the conduct knows or should know
would cause a reasonable person to fear for his or her safety or the safety of another or would cause
a reasonable person substantial emotional distress”) with 1993, No. 95 § 1 (defining stalking in
1993 to require proof that defendant “causes the person to fear for his or her physical safety or
causes the person substantial emotional distress.”). That mens rea provision—a controlling
component of the Beldiman ruling—was added in 2005. See State v. Van Aelstyn, 2007 VT 6,
¶ 17, 181 Vt. 274. Likewise, the provision that establishes aggravated stalking based on possession
of a weapon, 13 V.S.A. § 1063(a)(5), was not part of the crime in 1993 but was added by the
Legislature in 2005. 2005, No. 83, § 5.
5 Downing specifically discussed the precedential effect of published decisions of single
justices. 2020 VT 97, ¶ 35-36. The Court, however, does not believe Beldiman’s unpublished
status diminishes its force under Downing. Indeed, the Shores Court went to great lengths to
examine another unpublished opinion, Madigan, 2011 WL 4974812, prior to overruling it. Shores,
2025 VT 62, ¶¶ 17-21, 27.

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will reasonably prevent the physical violence.” Vt. Const. ch. II, § 40(2) (emphasis added); 13
V.S.A. § 7553a (emphasis added). This is an exacting standard.
As this Court has noted, proof by clear and convincing evidence requires:
somewhat less than evidence beyond a reasonable doubt, but more
than a preponderance of the evidence. The clear and convincing
standard does not require that evidence in support of a fact be
uncontradicted, but does require that the fact’s existence be highly
probable.
Lanfear v. Ruggerio, 2020 VT 84, ¶ 18, 213 Vt. 322 (quotations and citation omitted); see State v.
Lontine, 2016 VT 26, ¶ 46, 201 Vt. 637, (explaining standard “the clear-and-convincing-evidence
standard should operate as a fundamental caution upon the minds of all judges, barring such orders
unless the evidence results in a firm conviction as to the truth of the allegations to be established”)
overruled on other grounds by State v. Downing, 2020 VT 101 213 Vt. 468. As noted in Shores,
the legislative history of Chapter II, § 40(2) and § 7553a indicated a concern for releasing
individuals on bail where the “likelihood of further injury to society [was] extremely high.” 2025
VT 62, ¶ 30 (quotation omitted). Accordingly, the State’s proof must establish by that elevated
standard that there exists a substantial threat of physical harm that cannot be addressed through
any conditions of release. See 13 V.S.A. § 7553a(a); Vt. Const. ch II, § 40(2)
In this instance, the State has not presented clear and convincing evidence that the threat
of physical violence against B.S. is substantial and that conditions will not suffice to protect B.S.
from defendant. On the one hand, the evidence shows that defendant violated a civil restraining
order by coming to B.S.’s home two times with a gun and knife, violated that same order by not
surrendering his firearms to law enforcement, has sometimes expressed anger towards B.S., and
has sworn at her. He acted erratically during the two months prior to entering custody, appeared
suicidal at times, and B.S. is fearful of how he might act in his present state. Defendant has no
stable residence and, thus far, has not proffered a responsible adult to oversee his adherence to any
release conditions.
On the other hand, defendant made no physical contact with B.S. during the two trips to
her home at issue here; made no physical threats to B.S.; and did not display or even note the
weapons, which remained at all times within the purloined dump truck. B.S. stated that he was
non-confrontational during the encounter, and she was able to check her car for defendant’s mail
while he was there without incident. The State did not present evidence of a history of physical
threats or violence between B.S. and defendant at any time in the past, nor did it point to any
physically threatening statements by him toward her. Further, during the second trip to the home
on June 2, 2026, B.S. was not present, and the State did not offer clear and convincing evidence
that he damaged any of B.S.’s property. B.S. testified that defendant stole nothing and, in her
view, was desperately trying to find his missing mail and credit cards when he came to her home.
Defendant has no criminal record or convictions for failing to follow conditions of release
issued in a criminal case in open court. Nor has defendant purposely failed to appear for any
criminal proceedings. The State has presented no evidence as to any misconduct, or assaultive or
threatening behavior by defendant since he came into custody over a month ago and has not

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presented evidence that defendant has been cited for any disciplinary violations in the jail. Cf.
State v. Galanes, No. 2009-210, 2009 WL 2480128, at *3 n.3 (Vt. July 23, 2009) (unpub. mem.),
https://www.vtcourts.gov/sites/default/files/documents/eo09-210.bail.pdf (noting HWOB order
was supported by proof of “behavior defendant ha[d] exhibited while in custody” on the charge,
which included “assaulting his cellmate”).
Given those circumstances, the Court is not convinced to the heightened degree applicable
here that defendant’s risk of harm towards B.S. cannot be managed effectively by conditions of
release. The State’s evidence , though concerning, is not in keeping with the factual circumstances
this Court has found compelling enough to warrant holding defendants without bail in the past.
See, e.g., State v. Hosten, No. 26-AP-008, 2026 WL 253322, at *7-9 (Vt. Jan. 30, 2026) (unpub.
mem.) https://www.vtcourts.gov/sites/default/files/documents/eo26-008.bail_.pdf (noting
defendant had “willfully caused serious bodily injury to the complainant by strangling her” and
had repeatedly engaged in such conduct over the course of their relationship,” and that defendant
“demonstrated a lack of respect both for the law and for specific conditions imposed on him”
through criminal history which included “convictions for violating conditions of release” and
“resisting a lawful arrest” (quotation omitted)); State v. Steuerwald, 2012 VT 98, ¶¶ 13, 16, 193
Vt. 663 (explaining “[d]efendant’s act of strangling complainant was violent in the extreme,” and
“defendant was so determined to hurt complainant, nothing was going to stop defendant except
police force,” and reasoning “[d]efendant [could not] be relied upon to abide by no-alcohol
conditions of release and [did] not obey court orders”).
Although the Court shares the State’s apprehension regarding defendant’s potential
disregard of conditions of release in light of his recent mental health concerns, the State has not
persuaded the Court of that likelihood by clear and convincing evidence.
Pursuant to Vermont Rule of Appellate Procedure 9(b)(1)(F) and since some of the
potential conditions require additional judicial inquiry, the matter will be remanded to the trial
court for a prompt hearing and imposition of conditions of release. While it will be up to the trial
court to fashion such conditions, the Court believes conditions that might be considered would
include:
A condition that defendant appear for court hearings unless excused.
A condition that defendant inform defense counsel and the court of
any changes in his address or phone number.
A condition prohibiting defendant from purchasing or possessing
any dangerous or deadly weapons.
A condition prohibiting defendant from purchasing, possessing, or
consuming any alcoholic beverages. If unable to do so, a condition
requiring participation in an alcohol treatment program.
A condition requiring that defendant have no contact with B.S.
A condition that defendant stay 300 feet away from B.S., her
residence, place of employment, and vehicle.

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A condition that defendant not enter the Town of Underhill.
A condition that defendant participate in a mental health evaluation
and follow any recommended course of treatment.
A condition that defendant be subject to a curfew from 7:00 p.m. to
7:00 a.m. at a designated residence or shelter.
A condition that defendant be released to a responsible custodian.6
A condition that defendant be subject to immediate arrest for
violating any of the protective conditions of release.
Given the importance of having strong conditions of release in place to mitigate the risks
presented in this case, the hold without bail order will be vacated only upon the trial court’s
issuance of such conditions of release.
Reversed and remanded.
FOR THE COURT:
Timothy B. Tomasi, Superior Judge,
Specially Assigned
6 While the defense did not proffer such an individual at hearing, the trial court is not
precluded from inquiring as to whether such an individual has been located in the interim. The
Court’s determination on appeal, however, does not depend on the availability of a custodian.