“Criminal Behavior” Probation Conditions Do Not Require Proof of Every Element of a Specific Charged Crime: Commentary on State v. Christopher Brown (Vt. 2025)

I. Introduction

The Vermont Supreme Court’s entry order in State v. Christopher Brown, No. 24-AP-228 (Nov. 7, 2025), affirms the revocation of a defendant’s probation following an assault on his teenage nephew. Although the decision is explicitly designated as a nonprecedential “three-justice panel” entry order, it nonetheless offers a clear and instructive application of Vermont’s probation-revocation framework.

The case sits at the intersection of several recurring questions in probation law:

• What must the State prove to establish a violation of a probation condition prohibiting “criminal behavior”?
• Must the State prove all elements of a specific charged crime referenced in the probation-violation complaint, or is it sufficient to prove unlawful conduct more generally?
• How must trial courts weigh a probationer’s positive “intervening conduct” when deciding whether to revoke probation under 28 V.S.A. § 303(b)?
• To what extent must a court consider Department of Corrections (DOC) “sanction guidelines” before revoking probation, particularly when the violation consists of a new crime rather than a technical infraction?

The Supreme Court’s disposition:

• Clarifies that a “criminal behavior” condition is violated by proof of unlawful conduct (here, assault), even if the State does not prove all aggravating facts alleged in the original probation complaint.
• Reaffirms that revocation decisions are highly discretionary, provided the trial court considers the statutory factors and the entire course of the defendant’s conduct.
• Signals that DOC “graduated sanctions” guidelines—designed for “technical violations”—have little, if any, role where the violation consists of new criminal conduct.

Although not binding precedent, the reasoning in Brown is a useful guide to how Vermont appellate courts are likely to treat similar issues in future cases.

II. Summary of the Opinion

Christopher Brown was on probation following convictions (and a no-contest plea) for aggravated assault with a deadly weapon, simple assault on a protected person, and DUI (second offense). He received a seven-to-ten-year sentence, all suspended except nine months, with a six-year probation term expiring in 2028. Among his probation conditions were:

• Condition A: “You shall not be convicted of another crime or engage in criminal behavior.”
• Condition 23: “You shall not engage in violent or threatening behavior.”

In July 2023, his probation officer filed a violation complaint based on a new criminal charge—first-degree aggravated domestic assault—for allegedly striking and choking his sixteen-year-old nephew, identified in the affidavit as “DB.” The criminal charge was later dismissed, but the probation-violation proceeding went forward.

At the merits hearing, a state trooper and an eyewitness described Brown striking and choking Devin Brown, who appeared injured; the court found that Devin Brown was the “DB” identified in the affidavit. The trial court concluded that Brown had violated conditions A and 23, then revoked probation and imposed the underlying seven-to-ten-year sentence after a sentencing hearing. When the court later concluded it had improperly considered Brown’s prior criminal history, it held a second sentencing hearing and again decided revocation was necessary, this time expressly grounding its decision in protecting the community from further violent conduct.

On appeal, Brown argued:

1. The State failed to prove a violation of condition A because it did not establish that Devin Brown was the sixteen-year-old nephew referenced in the violation complaint, and did not prove all elements of the first-degree aggravated domestic assault charge.
2. The trial court abused its discretion by failing to:
   • adequately consider his positive behavior on probation (employment, treatment, compliance),
   • consider and utilize less restrictive conditions instead of full revocation, and
   • consider DOC sanctions guidelines as required by statute.

The Vermont Supreme Court rejected all of these arguments and affirmed:

• It held there was sufficient evidence, by a preponderance, that Brown engaged in “criminal behavior” (assault), even though the State did not prove the victim’s age or their family relationship at the hearing.
• It concluded that the trial court did consider Brown’s positive “intervening conduct” and alternative conditions, but reasonably found that his unprovoked, alcohol-fueled assault on a family member—similar in nature to his original violent offense—showed that probation supervision and existing conditions could not adequately protect the community.
• It acknowledged the trial court did not expressly consider DOC sanctions guidelines but found no reversible (or plain) error, in part because the guidelines apply to “technical violations,” not to violations consisting of new criminal activity such as an assault.

III. Analysis

A. Factual and Procedural Background in Detail

Brown’s original convictions stemmed from serious, alcohol-fueled conduct: he had previously threatened neighbors and police officers with a machete after recklessly driving around a mobile home park while intoxicated. These violent offenses led to a substantial but largely suspended sentence, coupled with a lengthy term of probation designed to manage risk through supervision and conditions, including strict limits on substance use and violence.

By the time of the July 2023 incident, Brown appeared—at least superficially—to be doing well on probation: working, engaged in counseling and group alcohol treatment, and largely compliant with his conditions.

That changed when he confronted Devin Brown at a third party’s house. According to the eyewitness:

• Brown arrived “all mad.”
• He repeatedly ordered Devin to stand up; Devin refused.
• Brown “smacked him in the face” without provocation, initiating a fight.
• At one point, Brown choked Devin using his legs.

A responding trooper observed Devin outside, shirtless, with visible injuries: scratches on his chest and a bloodshot eye. Photographs of these injuries were admitted. Devin later testified at sentencing that he was sixteen at the time and that Brown was a “good person” when sober; Devin urged the court to favor treatment over incarceration.

The trial court concluded that Brown had violated both the “no criminal behavior” condition and the “no violent or threatening behavior” condition. After initially revoking probation and then re-opening the sentencing when it realized it had improperly considered prior criminal history, the court again revoked probation and imposed the underlying sentence, finding:

• Brown’s alcohol and mental-health issues could not be adequately managed in the community.
• Existing conditions and apparent compliance had not prevented further unprovoked violence.
• Revocation was necessary to protect the public from further criminal activity (28 V.S.A. § 303(b)(1)).

B. Issues on Appeal

The Supreme Court framed and addressed Brown’s appellate arguments as follows:

1. Sufficiency of proof of a violation of condition A (“criminal behavior”):
   • Did the State fail to prove the violation where it did not present evidence that the victim was Brown’s sixteen-year-old nephew, as specified in the violation complaint?
   • Must the State prove all elements of the specific criminal charge (first-degree aggravated domestic assault) referenced in the complaint to establish “criminal behavior”?
2. Exercise of sentencing discretion upon violation:
   • Did the court fail to consider Brown’s positive intervening conduct on probation?
   • Did the court err in concluding no alternative or additional conditions could adequately manage risk and support law-abiding behavior?
   • Did the court err by failing to consider DOC sanctions guidelines before revoking probation?

C. Precedents and Authorities Cited

1. State v. Bostwick, 2014 VT 97, 197 Vt. 345

Bostwick establishes the burden of proof in probation-violation proceedings: the State must prove a violation by a preponderance of the evidence (i.e., more likely than not), not beyond a reasonable doubt. The Court cites Bostwick to reaffirm that the State’s burden in Brown’s case was to show it was more probable than not that Brown engaged in “criminal behavior,” not to obtain a criminal conviction or prove elements to the criminal standard.

2. State v. Sanville, 2011 VT 34, 189 Vt. 626 (mem.)

Sanville provides the appellate standard of review for probation-violation findings:

• Trial court findings of fact are upheld if supported by “credible evidence.”
• The appellate court will uphold the legal conclusion that a violation occurred if reasonably supported by the findings and not based on erroneous law.

The Court invokes Sanville to justify its deference to the trial court’s factual determinations (e.g., that Devin Brown was the “DB” referenced in the affidavit, and that Brown assaulted him) and its ultimate conclusion that Brown violated his “criminal behavior” condition.

3. State v. Richards, 2021 VT 40, 215 Vt. 1

Richards is central to the meaning of “criminal behavior” in probation conditions. It holds that:

• A condition requiring that the defendant “not engage in criminal behavior” does not merely prohibit being convicted of a crime.
• Instead, it prohibits “unlawful behavior,” even absent a conviction.

In Brown, this precedent underpins the Court’s rejection of the argument that, because the State did not prove all elements of first-degree aggravated domestic assault (e.g., victim’s age, domestic relationship), there was no “criminal behavior.” The Court uses Richards to emphasize that any unlawful assaultive conduct proven by a preponderance—regardless of the ultimate disposition of the corresponding criminal charge—can violate a “criminal behavior” condition.

4. State v. Neisner, 2010 VT 112, 189 Vt. 160

Neisner addresses the sufficiency of a criminal information in providing fair notice of charges. It articulates a functional test: whether it is fair to require the defendant to defend on the basis of the charge as stated.

Although Neisner deals with criminal informations, the Court applies its reasoning by analogy to probation-violation complaints, to reject Brown’s claim that he lacked fair notice because the proof at the hearing did not match the age/relationship allegations in the complaint. The Court stresses the absence of prejudice and surprise.

5. State v. Gauthier, 2016 VT 37, 201 Vt. 543

Gauthier is cited for its discussion of plain error review: even if an error occurred, reversal requires a showing of prejudice—i.e., that the error undermined confidence in the outcome.

In Brown, this standard is applied to the alleged failure to consider DOC sanctions guidelines. Because defense counsel did not raise that issue below, the Court reviews for plain error and finds none, noting the lack of any showing that consideration of the guidelines would have changed the result.

6. Statutory and Regulatory Authorities

• 28 V.S.A. § 304(a): Gives trial courts discretion, upon finding a violation, to revoke probation and impose the underlying sentence.
• 28 V.S.A. § 303(b): Limits revocation to situations where the court finds, based on the original offense and the defendant’s intervening conduct, that:
  1. Confinement is necessary to protect the community from further criminal activity by the probationer; or
  2. The probationer needs correctional treatment best provided in confinement; or
  3. Not revoking probation would unduly depreciate the seriousness of the violation.
• 28 V.S.A. § 304(c): Requires courts, before revoking probation, to “consider, but [have] complete discretion whether to follow,” DOC sanction guidelines.
• DOC Graduated Sanctions Regulation, Code of Vt. Rules 13 130 028: Establishes “graduated sanctions” for technical violations of probation—violations that do not constitute new crimes.

The Supreme Court leans heavily on § 303(b) and § 304 in assessing whether the trial court properly exercised its revocation authority, and on the text of the DOC rule to conclude that the sanctions scheme is tailored primarily to technical, non-criminal violations.

D. The Court’s Legal Reasoning

1. Proving Violation of a “Criminal Behavior” Condition

a. Identification of the Victim and the “DB” Issue

Brown argued that the State failed to prove that the victim of the July 2023 assault—Devin Brown—was the sixteen-year-old nephew identified as “DB” in the probation-violation complaint and affidavit. The Supreme Court noted:

• The complaint alleged that Brown assaulted his sixteen-year-old nephew on July 9, 2023.
• The accompanying affidavit referred to the victim as “DB,” stating that DB had told officers his uncle, Christopher Brown, assaulted him.
• At the hearing, an eyewitness testified that Devin Brown was the person assaulted by the defendant on that date, and the trooper corroborated injuries and circumstances consistent with the affidavit.
• The trial court explicitly found that Devin Brown was the “DB” referenced in the affidavit.

On appeal, Brown did not challenge these factual findings. Applying the Sanville standard, the Court held that the findings were supported by credible evidence and were therefore binding. The identification of Devin Brown as “DB” was thus not genuinely in dispute.

b. Are Age and Family Relationship Elements of the Violation?

The more nuanced argument was that the State’s failure to prove Devin’s age and the uncle-nephew relationship at the hearing meant the evidence did not match the allegations in the complaint. Brown attempted to translate that mismatch into a failure to prove “criminal behavior."

The Court’s answer was twofold:

1. Those facts were not elements of the violation charge.
   The violation at issue was that Brown engaged in:
   • “criminal behavior” (condition A), and
   • “violent or threatening behavior” (condition 23).

   Neither the victim’s age nor the familial relationship is an element of “criminal behavior” in this context. Those facts are elements of the particular criminal offense of first-degree aggravated domestic assault, but the probation condition itself prohibits all unlawful conduct, not a specific enumerated crime.

2. “Criminal behavior” does not require proof of every element of a particular charged crime.
   Relying on Richards, the Court emphasized that “criminal behavior” conditions target “unlawful behavior,” not convictions. Thus, even if the State’s proof would not suffice for first-degree aggravated domestic assault, the question for probation purposes was whether Brown unlawfully assaulted Devin. Brown conceded in his brief that “assault is ‘criminal behavior.’”

Once the Court accepted the trial court’s finding that Brown struck and choked Devin without provocation, the conclusion that he engaged in unlawful assaultive conduct followed easily. The decision therefore underscores an important principle:

A probation condition prohibiting “criminal behavior” is violated when the State proves, by a preponderance of the evidence, that the probationer engaged in unlawful conduct; the State need not establish every element of the particular criminal charge originally referenced in the probation-violation complaint.

c. Fair Notice and Due Process

Brown also appeared to argue that he lacked fair notice of the actual violation being litigated, because the hearing evidence did not track the age/relationship details in the complaint. The Court, invoking Neisner, focused on whether it was fair to require Brown to defend on the basis of this complaint.

Key points:

• The complaint identified the alleged victim as Brown’s sixteen-year-old nephew, with initials “DB,” and specified the date and nature of the assault (striking and choking while intoxicated).
• The State’s proof at the hearing matched in all significant respects: Devin Brown was assaulted by Brown on the same date, with striking and choking described; the injuries and circumstances aligned with the affidavit.
• Brown never claimed surprise or confusion at the hearing about the identity of “DB.”
• He did not show how any variance between the allegation (explicit mention of age and relationship) and proof at hearing prejudiced his ability to prepare or present a defense.

Because there was no demonstrated prejudice, the Court held there was no due process problem in allowing the violation to stand despite the absence of evidence on age and relationship.

2. Revocation Discretion Under 28 V.S.A. §§ 303(b) and 304

a. “Intervening Conduct” and Consideration of Positive Behavior

Under § 303(b), a court may revoke probation only if, “based on the original offense and the defendant’s intervening conduct,” one of three statutory criteria is met. Brown argued that “intervening conduct” must include all his behavior since the original offense—including the positive: law-abiding conduct, employment, family support, treatment participation, and community service. He claimed the trial court did not consider these facets adequately.

The Supreme Court responded in two steps:

1. Assuming, without deciding, Brown’s reading of “intervening conduct.”
   The Court declined to decide the precise scope of “intervening conduct,” instead “assum[ing] without deciding” that Brown’s expansive interpretation was correct.
2. Finding that the trial court did in fact consider his positive behavior.
   The record showed that, at the second sentencing hearing, the court explicitly noted Brown’s counseling participation, group alcohol treatment, and overall compliance until the July 2023 assault. The court simply found that:
   • The unprovoked, violent attack on his nephew, while intoxicated, outweighed his prior compliance; and
   • This incident—because of its severity and similarity to the original offense—demonstrated that probationary supervision and conditions were not sufficient to protect the community.

Consequently, the Supreme Court held there was no abuse of discretion. The decision signals that:

• Trial courts must consider both positive and negative conduct during probation.
• But a single, serious, violent incident can legitimately outweigh a substantial period of good performance in the court’s risk assessment.

b. Reasonableness of Rejecting Alternative Conditions

Defense counsel proposed non-incarcerative alternatives—such as inpatient rehabilitation, alcohol monitoring, a stricter curfew, and enhanced AA participation—arguing these could mitigate risk without revocation. Brown further argued that certain conditions (e.g., electronic monitoring, curfew) were discretionary and had not been fully implemented by his probation officer, so it was unfair to declare them “insufficient.”

The Court’s reasoning:

• The record showed Brown was, in fact, engaged in counseling and group alcohol treatment at his probation officer’s direction prior to the assault.
• The trial court reasonably inferred that adding more conditions would likely not deter further violent behavior, given that:
  • Brown was apparently “doing well” and compliant,
  • he was already in treatment, and
  • he nevertheless committed an unprovoked violent assault resembling his original offense.
• The original offense—threatening neighbors and police with a machete while intoxicated—was strikingly similar in profile: alcohol-fueled, unpredictable, violent conduct.

Thus, under § 303(b)(1), the trial court was entitled to find that confinement was necessary to protect the community from further criminal activity and that a split or modified sentence would serve only punishment, not public safety or rehabilitation. That determination is classic discretionary judgment, and the Supreme Court found no abuse.

3. DOC Sanctions Guidelines and “Technical Violations”

Finally, Brown invoked 28 V.S.A. § 304(c), which requires a court, before revoking probation, to “consider, but [have] complete discretion whether to follow,” DOC sanction guidelines. He argued the trial court erred by failing to mention or apply those guidelines.

The Supreme Court acknowledged that:

• The parties did not raise the sanctions guidelines at the trial level.
• The trial court did not appear to have considered them.

However, two points limited the force of this argument:

1. Nature of the guidelines.
   The DOC guidelines (Code of Vt. Rules 13 130 028) are designed for “technical violations”—defined as violations that do not constitute new crimes. They establish graduated sanctions for missed appointments, curfew violations, or similar non-criminal noncompliance.
   
   Brown did not contend that his July 2023 assault was a “technical violation”; it plainly involved new criminal conduct. As such, the guidelines may not have applied at all.
2. No prejudice shown (plain error standard).
   Because the issue was not raised below, the Supreme Court applied plain error review, guided by Gauthier. Brown failed to show how consideration of guidelines tailored for technical violations would have altered the outcome in a case involving serious new violence.

Accordingly, even if the trial court technically erred in not referencing § 304(c)’s requirement, that omission did not amount to plain error warranting reversal.

E. Impact and Implications

1. Nonprecedential Status but Persuasive Value

The opinion begins with a caution: “Decisions of a three-justice panel are not to be considered as precedent before any tribunal.” Thus, Brown does not bind lower courts in the formal, stare decisis sense. Nonetheless, it is a clear window into how the Vermont Supreme Court is apt to approach:

• Probation conditions using “criminal behavior” language;
• The weight given to serious, violent incidents even after a period of compliance;
• The limited relevance of DOC technical-violation guidelines in cases involving new crimes.

Practitioners should treat it as a strong indicator of likely outcomes and reasoning, even if it cannot be cited as binding authority.

2. For Prosecutors and Probation Officers

• Charging strategy in violation complaints.
  The State often mirrors criminal charges in probation-violation complaints. Brown shows that even if the specific charge (e.g., first-degree aggravated domestic assault) is not fully proven or is dismissed, the State can still prevail by proving the underlying unlawful conduct (e.g., simple assault) as a violation of a broad “criminal behavior” condition.
• Burden of proof is modest.
  The State need not meet the criminal standard of “beyond a reasonable doubt”; a preponderance suffices. This lower bar, coupled with the broad interpretation of “criminal behavior,” makes probation revocation a potent enforcement tool.
• Documentation and victim identification.
  Clear identification of the victim (even by initials, relationship, and age) is sufficient where the hearing evidence makes it obvious whom the allegation concerns and there is no prejudice to the defendant.

3. For Defense Counsel

• Assault or similar unlawful conduct is enough.
  Defendants cannot rely on the State’s inability to prove aggravating elements (such as age or domestic relationship) to defeat a violation based on a “no criminal behavior” condition. If the core conduct is unlawful (e.g., any simple assault), the condition is likely violated.
• Fair-notice objections must be concrete.
  General claims of mismatch between complaint and proof will fail absent a specific showing of surprise or prejudice to the defense strategy.
• Preserve DOC-guidelines arguments.
  If counsel wishes to invoke § 304(c), they should:
  • Raise the issue at the revocation/sentencing hearing,
  • Identify how the guidelines apply to the alleged violation, and
  • Explain how they should influence the court’s choice of sanction.
  Waiting to raise it on appeal invites plain-error review and will usually be fatal unless a clear and outcome-changing mistake is evident.
• Develop a robust record of positive intervening conduct.
  While Brown shows that one serious incident can override prior good behavior, a strong record of rehabilitation and compliance remains critical to any argument against revocation or in favor of a lesser sanction.

4. For Trial Courts

• Explicitly weigh positive and negative intervening conduct.
  Articulating that the court has considered both compliance and violations—and explaining why a serious incident outweighs positive conduct—strengthens the record against claims of abuse of discretion.
• Connect the violation to statutory criteria.
  Here, the court tied its decision expressly to § 303(b)(1): community protection. It also explained that a split sentence would only serve punishment, not risk management. This type of explicit linkage is crucial for appellate deference.
• Consider, but contextualize, DOC guidelines.
  Even if not formally applicable, acknowledging the guidelines and explaining why they do or do not matter in a given case (especially where the violation is a new crime) will help insulate revocation decisions from challenge under § 304(c).

5. Substantive Message: Serious Violence While on Probation

The core message of Brown is substantive: a probationer on supervision for serious violent conduct who then commits a new, unprovoked, alcohol-fueled assault—especially against a family member—runs a very high risk of full revocation, even if:

• He has been compliant for some time, working and supporting his family;
• He is engaged in treatment; and
• The victim expresses forgiveness or a preference for treatment over incarceration.

Trial courts are entitled to place heavy weight on the similarity between the original offense and the violation in assessing risk to the community.

IV. Complex Concepts Simplified

1. Probation and Probation Revocation

Probation is a form of conditional liberty: instead of serving a full prison sentence upfront, the defendant is released into the community under court-imposed conditions (e.g., treatment, curfews, abstaining from alcohol). If those conditions are violated, the court can:

• Continue probation (possibly with modified or stricter conditions),
• Partially revoke probation and require some incarceration (a split sentence), or
• Fully revoke probation and impose the original underlying sentence in full.

2. “Preponderance of the Evidence” vs. “Beyond a Reasonable Doubt”

• Beyond a reasonable doubt (criminal trial standard): The evidence must be so strong that a reasonable person would have no reasonable doubt about guilt.
• Preponderance of the evidence (probation violation standard): It is enough that the evidence shows a fact is more likely true than not (over 50% likelihood).

Probation violations use the lower standard because they concern enforcement of an already-imposed sentence, not a new conviction.

3. “Criminal Behavior” Condition

A probation condition stating “you shall not be convicted of another crime or engage in criminal behavior” does two things:

• Bars the probationer from being convicted of another crime during probation, and
• More broadly, prohibits any unlawful conduct, even if no charges are filed or conviction obtained.

Under Richards (and reaffirmed in Brown), “criminal behavior” encompasses conduct that would be a crime if charged and proven, not just a formal conviction.

4. “Intervening Conduct”

“Intervening conduct” is the probationer’s behavior between:

• the original offense (for which he is on probation), and
• the time the court decides whether to revoke probation.

It may include:

• Positive actions (employment, treatment, family support, compliance), and
• Negative actions (new offenses, failed conditions, relapses, violations).

Courts must consider this entire course of conduct when deciding whether revocation is necessary under § 303(b).

5. “Technical Violation” and DOC Graduated Sanctions

A technical violation is a probation violation that does not involve new criminal conduct. Examples:

• Missing a meeting with a probation officer,
• Breaking curfew,
• Failing to complete a treatment group (without new criminal behavior).

DOC’s graduated sanctions guidelines suggest increasingly serious, but often non-incarcerative, responses to repeated technical violations (e.g., increased reporting, short jail stays, electronic monitoring). These guidelines are intended to reduce revocations and incarceration for relatively minor non-compliance.

When the violation itself consists of new criminal conduct, such as an assault, these guidelines generally do not apply, or at least carry much less weight.

6. “Plain Error” and Prejudice

On appeal, if an issue was not raised in the trial court, the reviewing court usually applies a plain error standard. The appellant must show:

• There was an obvious legal error, and
• The error affected substantial rights—i.e., it likely changed the outcome or seriously undermined the fairness of the proceeding.

Without a clear showing of prejudice, even a real error will not justify reversal under this demanding standard.

V. Conclusion

The Vermont Supreme Court’s entry order in State v. Brown affirms a trial court’s decision to revoke probation based on a serious new assault committed by a probationer already on supervision for violent, alcohol-fueled crimes. The decision, though nonprecedential, offers several important takeaways:

• A “no criminal behavior” condition is violated when the State proves unlawful conduct by a preponderance of the evidence; the State need not prove all elements of a specific charged offense identified in the violation complaint.
• Alleged mismatches between complaint allegations and proof do not undermine a violation absent concrete prejudice or surprise to the defendant.
• Trial courts must consider the probationer’s entire intervening conduct, including positives like treatment and employment, but may reasonably conclude that a serious, violent incident outweighs prior compliance and warrants revocation for community protection.
• DOC’s graduated sanctions guidelines are primarily designed for technical, non-criminal violations; their relevance is limited where the violation consists of new criminal conduct, and failure to consider them will not produce reversal absent a showing of prejudice.

Ultimately, Brown underscores the seriousness with which Vermont courts regard new violent conduct committed by individuals on probation for similar offenses, and it clarifies the evidentiary and legal contours of enforcing “criminal behavior” conditions in probation supervision.