State v. Fonseca-Cintron

• Decision Date: 08 November 2019
• Docket Number: No. 18-197,18-197
• Citation: 238 A.3d 594
• Parties: STATE of Vermont v. Onix FONSECA-CINTRON
• Court: Vermont Supreme Court

238 A.3d 594

STATE of Vermont

v.Onix FONSECA-CINTRON

No. 18-197

Supreme Court of Vermont.

March Term, 2019

November 8, 2019

Reargument denied August 6, 2020

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.

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

REIBER, C.J.

¶ 1.Defendant appeals his three domestic assault convictions.He argues that the trial court erred in failing to provide the jury with a self-defense instruction.He also argues that that the underlying conduct supports only one criminal offense, not three.We affirm.

I.Facts

¶ 2.Defendant and complainant began a sexual relationship in 2011.Complainant was married and her husband lived overseas.

In 2015, complainant's husband moved to the United States to live with her and she ended her relationship with defendant.Soon afterward, complainant visited defendant at his home, where they had a series of disagreements that led to the charges against defendant.Their accounts of what happened that day diverged at trial.We recount complainant's testimony first and defendant's testimony second.

¶ 3.According to complainant, defendant initially accepted the end of their relationship but later became very upset.Complainant went to defendant's house at his request and they argued.She left but came back when urged by defendant.They ate dinner and then had sex.But soon defendant began insulting her and pushed her as she was about to leave.Complainant pushed him back.The two argued and she left.

¶ 4.Complainant returned almost immediately to look for a missing ring.Defendant closed the door behind her and locked it.Complainant put down her phone and keys on the kitchen counter and started searching for the ring.Soon she noticed that defendant had taken her keys and demanded them back.Defendant grabbed complainant by the hair and dragged her around the house while hitting her.She felt her hair ripping.Defendant grabbed at complainant's earrings and other jewelry.Complainant bit defendant and tried to fight him off.He dragged her into the bedroom and choked her.She stopped fighting.Defendant started punching complainant's face; she fought him again, broke free, and ran to the living room.Defendant followed and began hitting complainant with a sheathed machete, saying he was going to kill her.Then defendant stopped and returned complainant's keys.Complainant saw there was a "black thing on his eyes," but she did not know what it was.She left and reported the incident to the police.

¶ 5.Defendant disputed most of complainant's testimony.According to him, after they had dinner and sex, he told complainant to leave but she became angry and "jumped over [him] like an animal."Defendant video recorded part of this encounter, which was played for the jury.Defendant further testified that when complainant returned to search for her ring, she began insulting him and making a mess.Defendant followed complainant into the bedroom and told her to stop, after which she became upset and hit him.He pushed her away, told her to stop again, and went into the bathroom.When he came out, she came out of the bedroom with his bag of jewelry in hand.Defendant followed complainant to the kitchen, telling her to give him the bag.She took a broom from the closet and hit him in the face with it.Then she dropped the broom and left.Defendant went looking for towels to dry the blood on his face.Defendant denied punching the complainant, pulling out her hair, or hitting her with the machete.He testified as follows:

[Defense attorney]: When [the complainant] was punching you and kicking you, like you said, what did you do?

[Defendant]: I was just trying to push her back, taking her away from me.

....

[Defense attorney]: Did you ever on that day ... punch [the complainant]?

[Defendant]: No; the only thing that I was trying was to take her away from me.

[Defense attorney]: Did you ever pull her hair out?

[Defendant]: I never pulled her hair ....

.... [Defense attorney]: And at any time during that day, on any occasion, did you take the machete and hit her with any part of it?

[Defendant]: No.

Additionally, the defense attorney asked: "So just so we're clear, when [the complainant] said you choked her, strangled her in the bedroom, in the back bedroom, did you agree with that?Did that happen?"Defendant answered, "No."

¶ 6.The State charged defendant with three counts of domestic assault: (1) first-degree aggravated domestic assault, 13 V.S.A. § 1043(a)(1), based on defendant's attempt to strangle complainant; (2) first-degree aggravated domestic assault with a weapon, id.§ 1043(a)(2), based on defendant's hitting the complainant with a sheathed machete and threatening to kill her; and (3) domestic assault, id.§ 1042, based on defendant's dragging complainant by the hair.The jury found defendant guilty on all three counts.Defendant timely appealed.

II.Self-Defense Instruction

¶ 7.We first address defendant's argument that the trial court erred in failing to provide a self-defense instruction.At trial, defendant requested an instruction on self-defense, which the court denied, reasoning that the evidence did not warrant the instruction.Defendant contends this was error because the evidence for self-defense was "overwhelming" and "the trial court is obligated to instruct on all relevant issues that the evidence could reasonably support."

A.Evidence at Trial

¶ 8.In addition to the evidence above, the following was admitted at trial: a police officer's testimony that complainant appeared injured when she reported the assault; photographs of bruising on her body taken at that time; and photographs of complainant's ear and head taken one week before trial.Complainant testified that defendant ripped her ear, requiring surgery, and her hair did not grow back after the assault.Defendant offered no competing evidence.

¶ 9.The State also admitted photographs of defendant and his home.These included photographs of cuts and bruising on defendant's body taken two days after the incident and photographs of defendant's belongings with blood on them, taken the day after the assault; defendant testified this was his blood.A police officer who responded to a 911 call made during their first argument testified he observed defendant had "old bruising" on his leg and some scratches on his shoulder prior to the later altercation.Another officer who saw defendant two days later testified that he looked like he"had been involved in quite a donnybrook or a fight."Defendant testified that the complainant had caused his injuries.A recording of the 911 call was also admitted.

B.Analysis

¶ 10.A trial court must provide the jury with an instruction on an affirmative defense when the evidence supports that defense.State v. Nunez, 162 Vt. 615, 617, 647 A.2d 1007, 1009(1994)(mem.)("A court's obligation to charge on a defendant's theory is limited to situations in which there is evidence supporting the theory.");State v. Drown, 148 Vt. 311, 312, 532 A.2d 575, 576(1987)(per curiam)("A defendant is entitled to have the court present a defense based on the evidence to the jury squarely, that they might confront it, consider it, and resolve its truth or falsity by their verdict."(quotation omitted)).The evidence must be sufficient to "establish a prima facie case for each element of the defense asserted."

State v. Albarelli, 2016 VT 119, ¶ 13, 203 Vt. 551, 159 A.3d 627.It is the defendant's burden to establish a prima facie case for self-defense.Id.("Once a defendant has satisfied the initial burden of production for the defense, the burden then shifts to the State to disprove self-defense beyond a reasonable doubt."(quotation omitted));see alsoState v. Baker, 154 Vt. 411, 414, 579 A.2d 479, 480(1990)(noting that "defendant carries the burden of production ... and must establish a prima facie case on each of the elements of the affirmative defense").However, we may consider the evidence as a whole, including the State's evidence, in deciding whether an instruction is warranted.Drown, 148 Vt. at 313, 532 A.2d at 577(relying on State's evidence in holding that "defense theory had sufficient support to be presented to the jury").

¶ 11.The legal theory of self-defense provides that a defendant is "justified in using a reasonable amount of force" if the defendant"is not the aggressor in [the] encounter" and "reasonably believes (a) that [the defendant] is in immediate danger of unlawful bodily harm from [the] adversary and (b) that the use of such force is necessary to avoid this danger."State v. Buckley, 2016 VT 59, ¶ 18, 202 Vt. 371, 149 A.3d 928(quotation and emphasis omitted);see alsoAlbarelli, 2016 VT 119, ¶ 13, 203 Vt. 551, 159 A.3d 627(holding that self-defense requires proof that defendant"had an honest belief that [defendant] faced imminent peril of bodily harm" and that belief was "grounded in reason").Thus, defendant was not entitled to a self-defense instruction unless he established at trial that he was not the aggressor; he used reasonable force against the complainant; he did so based on his honest belief that doing so was necessary to protect himself from immediate bodily harm; and his belief was reasonable.

¶ 12.The evidence does not meet this standard.According to defendant's account at trial, he did not use force at all, apart from pushing complainant in response to her attack.While he did not deny the sequence of encounters, he wholly denied strangling, hitting, or pulling complainant's hair.SeeBuckley, 2016 VT 59, ¶ 20, 202 Vt. 371, 149 A.3d 928(holding, among other reasons, that trial court did not commit plain error in failing to provide self-defense instruction because defendant"did not admit the elements of the charged crimes, but instead claimed innocence").And the State's evidence...