By MIKE DONOGHUE
A Shelburne man, who police say installed two electronic tracking devices in the car of his ex-longtime girlfriend, will be able to get his criminal stalking conviction wiped off his record if he stays out of trouble for the next six months under a plea bargain in Vermont Superior Court.
Alan G. Kirkpatrick, 65, of Spear Street, will be able to have a second pending criminal charge of violating an abuse prevention order also expunged from the court file as part of the plea deal, his defense lawyer Rick Goldsborough told the court last week.
Judge David Fenster said the negotiated plea deal requires Kirkpatrick to continue counseling to address issues outlined in the arrest affidavit by police. Kirkpatrick also must allow his probation officer to have access to his treatment or counseling provider, the judge said.
Kirkpatrick is prohibited from having any contact with the victim, Nancy Gerwig, and abide by Family Court orders concerning her, Fenster ruled.
Gerwig was so upset with the leniency of the proposed resolution in the case that she refused to go to the sentencing hearing, her lawyer Kurt Hughes wrote in a letter to State’s Attorney Sarah George.
Hughes, a former state prosecutor, thought Gerwig should have had some say in the settlement. “After working through this ordeal, a plea deal in this matter was reached without prior consultation with the victim,” Hughes wrote.
Multiple attempts to reach George for a comment were unsuccessful.
Kirkpatrick pleaded no contest to the stalking charge last week. Fenster also assessed Kirkpatrick $147 in court costs.
Kirkpatrick could have been imprisoned for two years and fined $5,000.
Hughes said he also was miffed by the treatment the case received from the state’s attorney’s office.
George’s office almost had Gerwig give up her confidentiality rights to her medical records, Hughes said. It was only when he objected that the he got the judge to review the issue and determine there was no basis for Kirkpatrick getting access to private records.
Judge Kevin Griffin did rule that Gerwig’s medical records had no bearing on the state’s ability to prove a stalking case. The judge said Kirkpatrick had no right to compel Gerwig to turn over medical records.
The charge stated that Alan Kirkpatrick, who dated Gerwig from 2010 to 2017, placed “two GPS tracking devices in her vehicle without her knowledge in order to determine her location, and knew or should have known that his actions 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.”
Judge Fenster asked Deputy State’s Attorney Emily Pijanowski to outline the case in open court. When she finished, Goldsborough said there was another side to the story, but that he would not contest it any further. Goldsborough said that after 11 months, his client wanted to have his case resolved.
At the Dec. 17 court hearing, the defendant’s former wife, Mary Kirkpatrick, who is Goldsborough’s law partner, sat in the front row behind the defense table.
The state’s attorney’s office proposed a 12-month deferred sentence, which allows for Kirkpatrick to get his record expunged. In a letter to Sarah George, Hughes said that his client was unhappy that the state accepted Kirkpatrick’s lawyer’s request to reduce that to six months instead.
Kirkpatrick, who is an engineer, had placed the tracking device in Gerwig’s car because he said he was trying to diagnose some ongoing car problems she experienced, Shelburne Police said in an affidavit.
Pijanowski countered that after the couple stopped dating in March 2017, Gerwig brought her car to the Girlington Garage in South Burlington to have it checked for mechanical issues. That is when the first tracking device was found by the lead mechanic.
A few days later, the owner of the garage reported that Kirkpatrick called to ask about the status of Gerwig’s car and about the GPS tracking device, Pijanowski wrote. He was told it had been removed and given to Gerwig.
The second device was found Oct. 10, 2017 and the garage owner reported the earlier call she fielded from Kirkpatrick, Pijanowski wrote.
“When Ms. Gerwig learned of this call, she was visibly shaken and began to cry,” she wrote. The prosecutor noted Gerwig explained to the garage that Kirkpatrick should not have access to information about her vehicle.
Goldsborough said he believed the state could prove only one of the tracking devices was installed by his client.
In a motion requesting the court to dismiss the case, Goldsborough also wrote: “The state also lacks substantial admissible evidence that the defendant’s actions caused Nancy Gerwig substantial emotional distress.”
The motion to dismiss was never ruled upon.
According to court papers, before the finding of the second tracking device, Kirkpatrick sent Gerwig an email which intimated that he knew she’d gone hiking in Bristol and to a particular restaurant there.
She was baffled how he knew her locations on multiple occasions, but eventually Kirkpatrick admitted to planting the device as a “diagnostic tool,” court documents explained.
Kirkpatrick also indicated he wanted to make sure she wasn’t out with other men in case they ever got back together again, Pijanowski wrote.
Under questioning from Shelburne Police Officer Michael Thomas, Kirkpatrick confirmed the device had GPS tracking, that he used it to track his ex-girlfriend and that he never told Gerwig he had installed it.
Abuse prevention order
The second charge for violating an abuse prevention order in December 2017 stems from Kirkpatrick trying to get a local acupuncturist to urge Gerwig to drop the stalking charges against him in exchange for him no longer seeking money that he claimed she owed him, court records show.
Police said the relief order from the court also blocked third parties from contacting Gerwig on his behalf, according to Shelburne Officer Kyle Brooks in a sworn affidavit. Kirkpatrick instead attempted to contact Gerwig one day after the court order was served on him, Brooks wrote.
Under the agreement with the court, Kirkpatrick still must abide by orders to avoid contact with Gerwig.