State v. Abel

• Decision Date: 29 March 2019
• Docket Number: No. 2017-362,2017-362
• Citation: 2019 VT 22
• Parties: State of Vermont v. Michael Abel
• Court: Vermont Supreme Court

2019 VT 22

State of Vermont v. Michael Abel

No. 2017-362

Supreme Court of Vermont

September Term, 2018

March 29, 2019

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Orleans Unit, Criminal Division

Howard E. Van Benthuysen, J.

James Pepper, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. CARROLL, J. Defendant appeals from his conviction of two counts of domestic assault following a jury trial. He argues that both convictions arise from the same assaultive incident in violation of the Double Jeopardy Clause of the U.S. Constitution. Defendant also asserts that the court committed plain error in its jury instructions. We affirm.

¶ 2. Defendant was charged with numerous crimes in October 2015 based on allegations that he harmed and threatened to harm the complainant—his cohabitating partner—and the parties' three children, then ages one, three, and five.¹ The charges at issue allege separately that defendant struck the complainant in the ribs and hit her in the arm.

¶ 3. The complainant testified to the following at trial. She met defendant online when she was thirteen and defendant was eighteen. She later moved to Vermont to live with defendant. Defendant began physically abusing her in 2012 after the parties' second child was born. He continued to physically and verbally abuse her thereafter. In April 2015, defendant held the complainant down on the floor and repeatedly punched her in the head, resulting in a concussion and bruised ribs. Defendant also threatened the complainant's life in front of the children.

¶ 4. On the day in question, the complainant was preparing the children for school. One child made a loud noise. Defendant became upset; he picked the child up and slammed her down. The complainant told defendant to "chill out." Defendant then "lost it," instructing the complainant not to tell him what to do in front of the children. He shoved the complainant while she was standing in the kitchen holding the parties' youngest child, causing the complainant and the child to fall. Defendant told the older children to go to their rooms, which they did. The complainant then moved a highchair from the kitchen into a bedroom and put the youngest child in it. After this, defendant hit the complainant and put his hands around her neck. Defendant then called the school and informed them that the children would be absent.

¶ 5. Upon further questioning by the State, the complainant clarified that after defendant shoved her to the ground, he called the school. When asked where on her body defendant hit her, the complainant replied "[m]y arm and my side mostly." She testified that he struck her four or five times in the arm or the side or on her body. While striking her, defendant yelled that she was an awful person and that "he was in charge of the kids." The complainant stated that it hurt when defendant hit her. When the State asked the complainant if defendant hit her in the ribs before or after the children went to their rooms, the complainant testified that "[s]ome was before" and "[s]ome was after." She testified that defendant put his hands around her neck after she put the children in their rooms.

¶ 6. Defendant did not present any evidence. He moved for a judgment of acquittal under Vermont Rule of Criminal Procedure 29 at the close of the evidence, asserting in relevant part that the two domestic assault charges were "one continuous action" and thus, that there should be only one charge. Defendant maintained that there was no evidence to show any break in time between the charged acts of striking the complainant in the ribs and arm. The State responded that this argument could be addressed after the case went to the jury.

¶ 7. The court denied defendant's motion as to the counts at issue here, although it reduced the aggravated domestic assault charge for allegedly striking the complainant in the ribs to a misdemeanor charge of domestic assault.² The court also proposed a special verdict sheet to avoid confusion. The special verdict sheet asked the jury to determine—if it found defendant guilty of both domestic assault charges—if there was "one continuous assault or two separate assaults, separated by time." Neither party objected to this instruction. The jury found defendant guilty of both domestic assault charges and it found that "two separate assaults, separated by time" occurred. Defendant renewed his Rule 29 motion, which the court denied. This appeal followed.

¶ 8. On appeal, defendant reiterates his argument that the domestic assault charges were part of a single, continuous assault and that his two convictions therefore violate the Double Jeopardy Clause. He asserts that there was no "break in the action" sufficient to allow him to form a new intent to assault the complainant. In support of this argument, defendant points to the complainant's testimony and the State's acknowledgement, in its discussion with the trial court, that the counts might be the same. Defendant asserts that he was prejudiced by the court's decision to allow both counts to go to the jury.

¶ 9. We review the trial court's denial of a motion for a judgment of acquittal to determine if "the evidence, when viewed in the light most favorable to the State and excluding any modifying evidence, fairly and reasonably tends to convince a reasonable trier of fact that thedefendant is guilty beyond a reasonable doubt." State v. Delisle, 162 Vt. 293, 307, 648 A.2d 632, 641 (1994) (quotation and alterations omitted). We review legal questions de novo. State v. Neisner, 2010 VT 112, ¶ 11, 189 Vt. 160, 16 A.3d 597. As set forth below, we conclude that there was no Double Jeopardy violation here. A reasonable jury could find, based on the evidence, that defendant committed two separate acts of domestic assault.

¶ 10. As we have explained, "[t]he Double Jeopardy Clause safeguards a criminal defendant from facing multiple punishments for the same offense." Id.; see also U.S. Const. amend. V (providing that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb"). Among other things, the Double Jeopardy Clause prohibits the State from "dividing a single criminal act into multiple counts of the same offense." Spencer v. State, 868 A.2d 821, 822 (Del. 2005). This is "commonly referred to as the 'multiplicity doctrine.' " Id. at 823.

¶ 11. "There is no bright-line rule" for determining multiplicity-doctrine violations. Id. Instead, courts must engage in a "fact-intensive" inquiry to determine if a "defendant's actions are sufficiently separate in time and location to constitute distinct acts." Id. In conducting this analysis, we have looked to:

the elapsed time between successive parts of the defendant's conduct; whether the defendant's conduct occurred in more than one geographic location; whether an intervening event occurred between successive parts of the defendant's conduct; [and] whether there was sufficient time for reflection between assaultive acts for the defendant to again commit himself.

State v. Fuller, 168 Vt. 396, 400, 721 A.2d 475, 479 (1998). "The critical inquiry is whether the temporal and spatial separation between the acts supports a factual finding that the defendant formed a separate intent to commit each criminal act." Spencer, 868 A.2d at 823; see also Fuller, 168 Vt. at 400, 721 A.2d at 479 (considering, as most important question, whether defendant "had sufficient time between the commission of the two acts to reflect upon what he was doing and to recommit himself").

¶ 12. In Fuller, we considered a defendant's argument that he had engaged in one continuous sexual assault rather than two separate sexual acts. The defendant there forced his stepson to drink alcohol, followed the child into a bedroom, and began masturbating in front of him. The child tried to escape but the defendant grabbed him, pulled down the boy's pants, and placed his mouth on the child's penis for five to ten seconds. The child eventually escaped and ran into the living room. The defendant followed him, threw the child onto a couch, and again placed his mouth on the child's penis for approximately one minute.

¶ 13. Applying the factors cited above, we concluded that two sexual assaults occurred. Fuller, 168 Vt. at 400, 721 A.2d at 480. We reasoned that while the "defendant's conduct in the bedroom and the living room was close in time," there was "an intervening event between the two acts," namely, the child's "escape from [the] defendant and his flight from the bedroom into the living room." Id. at 400, 721 A.2d at 479. As noted above, we found it most significant that the "defendant had sufficient time between the commission of the two acts to reflect upon what he was doing and to recommit himself to sexually assaulting the child [who] had escaped." Id.

¶ 14. In reaching our conclusion, we distinguished State v. Perrillo, 162 Vt. 566, 649 A.2d 1031 (1994). In Perrillo, the defendant carried his victim to a couch where, over the course of several minutes, he touched her chest and genitals. Id. at 567, 649 A.2d at 1032. The defendant was charged with two counts of lewd or lascivious conduct with a child, one for rubbing the child's genitals and the second for rubbing her chest. We reversed and remanded for a new trial, concluding that the evidence supported only one charge. We reasoned that because "a single episode of sexual...