[N]EWPORT – A Vermont judge ruled a man punched his girlfriend in the eye, but decided against convicting him of a felony because he said that man couldn’t have predicted the severity of the injury that he inflicted.
The woman suffered a broken orbital bone as well as deep bruising and bleeding to her left eye from the punch, according to court records and photographs of her injuries.
The ruling shaves at least a decade off the maximum potential sentence for the man’s actions.
“The court does think that he punched her,” Orleans County Judge Robert Bent said Friday from the bench after a one-day trial, according to a recording of his ruling obtained by VTDigger.
“The court has found that there was a domestic assault here. The court does not find that there was an aggravated domestic assault,” the judge said.
“You can’t simply look at the outcome and get to the aggravated nature,” he added. “I’ve seen this, what I believe to be that mistake, made repeatedly in many courts.”
In finding Anthony Bathalon guilty of misdemeanor domestic assault following the bench trial, he opted not to convict him of a felony offense. The judge had decided in a separate case related to the same incident to deny the woman’s request for a restraining order.
Bent also referenced another case involving the snapping of towels in a boys locker that resulted in a serious injury, but also left him unable to conclude that the person behind the act could have seen that result.
The judge’s latest decision in the domestic assault case has sparked outrage from a statewide victims’ rights group, which contends that such injuries suffered by the woman, and possibly worse, are inherent when someone throws a punch.
Cara Cookson, a lawyer and public policy director at the Vermont Crime Victims Services, said Thursday there’s “no legally significant difference” between misdemeanor and felony domestic assault. The difference is the severity of the injury, she said.
“If the state proves there is serious bodily injury and can show that there was some measure of recklessness causing the injury, which the findings have appeared to have been made here,” she said, “it’s hard to image how the court could have reached this conclusion.”
Cookson added, “The court does conclude that she was punched and the court does conclude that her eye-socket was broken.”
The stakes are high when considering the difference between the two offenses.
A misdemeanor charge carries a maximum penalty of 18 months in jail, while the felony is punishable by up to 15 years behind bars.
According to the felony charge filed by prosecutors, Bathalon “attempted to cause or wilfully or recklessly caused serious bodily injury to a family member or household member.”
The 27-year-old woman, according to a police affidavit, said Bathalon punched her last summer in a car before ordering her out of the vehicle, leaving her and her belongings on the side of the road in Irasburg with blood on her face. (VTDigger generally does not name domestic violence victims.)
Bathalon, 28, claimed, the affidavit stated, that he swung his arm and hit the woman in reaction to her digging her fingernails into his arm as they argued over finances and their relationship.
“The state failed to prove beyond a reasonable doubt that the defendant disregarded a known and substantial and unjustifiable risk that his conduct would place the young lady in danger of serious bodily injury,” Corby A. Gary, a St. Johnsbury attorney representing Bathalon, said Thursday.
He said his client did not intend to cause the injuries that the woman suffered.
“Anthony Bathalon claimed it was a mistake in an instantaneous reaction to her putting her nails into him from behind,” Gary said.
Orleans County State’s Attorney Jennifer Barrett could not be reached this week for comment. Judge Bent did not return a message seeking comment.
Judges almost never comment on their rulings, often letting their decisions speak for themselves. Bent was appointed to the Vermont trial court bench in February 2006 by Gov. James Douglas.
The recording obtained by VTDigger provides some insights into the judge’s ruling in Bathalon’s case.
“There’s two pieces to the aggravated domestic statute, in my estimation, first off you’ve got to have serious bodily injury, well, the state’s got that hands down,” Bent said in court Friday.
“The state’s got it hands down from several different mechanisms, she looks up and sees stars,” and a bone is broken to her eye,” the judge said. “The court doesn’t think that’s an issue.”
The judge continued, “But the court believes that the recklessness standard needs to be used to correlate the nature of the conduct with the resulting injury and so the court does not find the state has proven that.”
Bent then talked specifically about the case, and referenced that Bathalon has played semi-pro basketball.
“The distances in the car were relatively small, a little car, although the court notes that Mr. Bathalon is a professional athlete and a person of considerable strength,” the judge said. “The court does not find that there is sufficient room to wind up, nor does the court find that there is a description of a wind up.”
Bent said that he does think that Bathalon punched the women.
“But the court doesn’t think that it would have been clear enough for a reasonable person that a strike, for what it was, would have had this kind of consequence, and I think the state would have to prove that,” the judge said.
Illustrating his point, he then talked about a past case.
“To digress, maybe to make the point, I had a case some period of time ago, there was a locker room case, somebody snapped a towel and hit somebody else, it was a boys locker room,” the judge said. “Somebody snapped a towel and hit somebody else where you don’t want to be hit and that caused massive, massive edema and swelling.”
Bent added that in that case it couldn’t be concluded that it “would rise to a aggravated situation, because it would not have been sufficiently foreseeable.”
According to a police affidavit filed in Bathalon’s case, police were called around 5:45 p.m. on July 23, 2017, by a person reported seeing a female covered in blood standing on the side of Route 14 in Coventry.
Vermont State Police Trooper Jeff Ferrier responded to the scene and talked to the caller who said the woman, who had a lot of belongings with her, had left. At the same time, according to an affidavit, a dispatcher reported being on the phone with a woman saying that she had been assaulted.
The trooper met with the woman and could see “her left eye was entirely swollen shut and blood was coming from her lower eyelid” and running down to her neck, the affidavit stated.
The woman told police she was punched in the face by Bathalon, according to the affidavit. The incident began, she said, when she met Bathalon and his friend, Trevor Brink, 18, who were both returning from a basketball camp in Montreal.
The woman said she went in Brink’s car to pick them both up at the park and ride in Orleans. She said she got in the back seat of the vehicle behind Bathalon who was seated in the front passenger seat while Brink drove, the affidavit stated.
She told police that as they were driving, she and Bathalon got into a verbal argument over finances and Bathalon turned and struck her in the eye with a closed fist, according to the affidavit. She described the level of pain as and eight or nine on a scale of 10.
The trooper said he then spoke to Bathalon and Brink.
Bathalon said the woman “appeared to be intoxicated” when she picked the two men up at the Orleans park and ride, and once they were in the car together she began accusing him of cheating on her and lying to her about it.
“Bathalon stated (the woman) then reached between his headrest and the passenger side door and dug her fingernails into his biceps area,” according to the affidavit. “Bathalon stated he brought his arm back and (the woman) sat back down in her seat. Bathalone stated he wasn’t sure if he struck (the woman) but stated he never intentionally tried to strike her.”
Bathalon said he then told Brink to pull over, took the woman’s belongings out of the car, put them on the side of the road and told the woman to get out of the vehicle.
Brink, according to the affidavit, told police that he saw Bathalon bringing his arm back quickly, but didn’t see if it struck the woman. Brink told the officer he saw blood on the woman’s face after she got out of the vehicle.
In determining that a punch occurred, Judge Bent differed from an earlier ruling he issued in separate proceeding involving Bathalon and the woman stemming from the same incident.
The woman obtained an emergency restraining order against Bathalon on July 25, 2017.
Following a hearing in August, Bent denied a bid to extend that order. According to a transcript of that hearing, the judge said he wasn’t at that time persuaded that an assault had occurred by a preponderance of the evidence, meaning it’s more likely than not.
“So what we recognize, and I think it’s important that everybody understand this, when we say we don’t think that you convinced us that it’s more likely than not that he hit you in the — in any fashion that was abusive — that doesn’t mean that we are calling you or saying that you are absolutely lacking and that we don’t believe you,” the judge said to the woman, according to a transcript of that hearing obtained by VTDigger.
“The quality of your evidence though brings — doesn’t get us to say that it’s more likely than not, once we weigh it against the quality of the other evidence, that was brought to the Court by both Trevor and Anthony,” Bent said.
The judge added, “These things happen quickly sometimes, not always. There’s sometimes it’s very clear what happened and other times it’s not. Sometimes it’s clear to the people and it translates to us as something less than clear. Here it translated to us as something less than clear. So we’re not going to issue the order for that reason.”
No sentencing date has yet been set for Bathalon on the misdemeanor offense.
It’s also unclear if the prosecutor, or defense attorney, intend to appeal the judge’s verdict.
