Volume 150 — Vermont Reports

<bold>1. Constitutional Law — Speedy Trial — Prejudice</bold> Existence of prejudice to defense at trial must be shown in order to support claim that constitutional right to speedy trial has been violated. <bold>2. Evidence — Admissibility — Prior Bad Act</bold> It is permissibile for State's witness to testify about prior bad act in order to provide reason for witness's bias against defendant.<page_number>Page 41</page_number> <bold>3. Appeal and Error — Plain Error — Excluded Sua Sponte</bold> Testimony not objected to at trial fails to be preserved as issue for appeal, and will only be reversed by appellate court if trial court committed plain error in failing to exclude such testimony sua sponte. <bold>4. Evidence — Hearsay — Basis Testimony</bold> Although witness's testimony as to statements of expert was hearsay, it was admissible as basis testimony under V.R.E. 703, which provides for limited-purpose admission of otherwise inadmissible evidence. <bold>5. Evidence — Hearsay — Limiting Instruction</bold> When hearsay evidence, inadmissible under hearsay exception, is admitted under V.R.E. 703, opposing party is entitled to limiting instruction informing jury of narrow purpose for which evidence has been received.

<bold>Administrative Law — Abuse of Discretion — Prejudice</bold> Administrative board's failure to give parties opportunity to present evidence on matters statutorily required to be considered was abuse of discretion causing reversal.

<bold>1. Real Property — Easements — Subdivision</bold> Easements created solely for purposes of providing access to lots of subdivision are not extinguished when subdivision plan is abandoned. <bold>2. Damages — Conflicting Evidence — Reasonableness Test</bold> In cases where evidence relating to damages is conflicting, amount to be awarded is properly left to fact finder, and appellate court will not disturb award if it can be justified upon any reasonable view of evidence. <bold>3. Damages — Exemplary Damages — Actual Malice</bold> Award of exemplary damages was sustainable against purchaser of land in subdivision who had actual and constructive notice of existence of easements and proceeded nevertheless to build in such a way that easements were obstructed, on ground that purchaser's conduct evinced wanton disregard of lot owner's rights.<page_number>Page 54</page_number>

<bold>Motor Vehicles — Operating Under Influence — Abusive Conduct</bold> Motorist stopped by police on suspicion of DUI can be found to have refused to submit to breath test as required by <cross_reference>23 V.S.A. § 1202</cross_reference>, on basis of conduct alone, when that conduct entails violent and abusive behavior, even when motorist was not asked in specific terms to give sample of his breath, nor advised of his attendant statutory rights as provided by <cross_reference>23 V.S.A. § 1202</cross_reference>(c).

<bold>1. Statutes — Mens Rea — Implied</bold> Language of <cross_reference>23 V.S.A. § 1094</cross_reference> implies that general intent to operate vehicle without owner's consent is element of crime, and term "without the consent of the owner" implies that defendant knew, or should have known, that he was operating vehicle without owner's permission.<page_number>Page 120</page_number> <bold>2. Criminal Procedure — Jury Instruction — Sufficiency</bold> Jury instruction is sufficent if it provides jury with full, fair, and correct statement on all issues, theories, and claims within pleadings. <bold>3. Appeal and Error — Plain Error — Failure to Object</bold> To justify reversal on claim of error not presented below, Supreme Court must find plain error.

<bold>1. Criminal Law — Probation Order — Automatic Termination</bold> Under <cross_reference>28 V.S.A. § 255</cross_reference>, upon termination of probation, probationer is relieved of any obligations imposed by order of the court. <bold>2. Criminal Law — Probation Order — Modification</bold> Trial court does not have jurisdiction to modify probation order when modification proceedings are initiated after termination of probation. 28 V.S.A. §§ 253, 301.

<bold>Attorneys at Law — Disciplinary Rules — Application</bold> Disciplinary Rule 7-107(A) does not apply to defense counsel in course of their representation of potential criminal defendants.

<bold>1. Appeal and Error — Issue Not Raised at Hearing — Raised in</bold> <bold>Motion for Reconsideration</bold> Issue is proper for appellate review although not raised at hearing where issue did not arise until decision was issued and question was raised on motion for reconsideration. <bold>2. Appeal and Error — Transcripts of Prior Hearings — Not</bold> <bold>Admitted at Trial</bold> Transcript of prior hearing not introduced at trial cannot be considered on appeal. <bold>3. Administrative Law — Labor Relations Board — Exceeding</bold> <bold>Authority</bold> Labor Relations Board exceeded its authority by substituting its judgment for that of employer when it reinstated employee, since just cause for employee's dismissal existed as matter of law. <bold>4. Administrative Law — Labor Relations Board — Justification of</bold> <bold>Dismissal</bold> In order to meet legal criteria of just cause for dismissal, employee's must be egregious enough to justify dismissal and employee must be on fair notice that conduct could be grounds for dismissal.<page_number>Page 140</page_number>

<bold>1. Real Property — Foreclosure — In Rem Proceeding</bold> Judgment and decree of foreclosure operate only as to property secured by mortgage and do not impose any personal liability; only personal obligation is on underlying note if foreclosure of mortgaged premises is insufficient to satisfy debt secured by such mortgage. <bold>2. Civil Procedure — Affirmative Defenses — Res Judicata</bold> Doctrine of res judicata does not bar assertion of certain affirmative defenses in deficiency action based on underlying note, since deficiency action differs in nature and substance from foreclosure proceeding.

<bold>1. Appeal and Error — Findings of Fact — Clearly Erroneous</bold> <bold>Standard</bold> Findings of fact can be overturned only if they are clearly erroneous. <bold>2. Appeal and Error — Findings of Fact — Cause for Reversal</bold> Fact that trial court failed to adopt proposed findings of party is not cause for reversal since court is free to choose evidence it finds persuasive. <bold>3. Domestic Relations — Change in Circumstances — Relevance at</bold> <bold>Modification Hearing</bold> Circumstances of parties prior to divorce and any interim changes that were not in existence at modification of support hearing are irrelevant.<page_number>Page 432</page_number> <bold>4. Domestic Relations — Modification of Support — Change in</bold> <bold>Circumstances</bold> Real, substantial and unanticipated change of circumstances warranting modification of support order is shown where custodial parent's illness caused substantial setback in her ability to improve her economic position, and non-custodial parent's income has increased.