State v. Forant

• Decision Date: 21 August 1998
• Docket Number: No. 97-386.,97-386.
• Citation: 719 A.2d 399
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Brian FORANT.

719 A.2d 399

STATE of Vermont v. Brian FORANT.

No. 97-386.

Supreme Court of Vermont.

August 21, 1998.

William H. Sorrell, Attorney General, and Susan R. Harritt, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Robert Appel, Defender General, and Henry Hinton, Appellate Attorney, Montpelier, for Defendant-Appellant.

Before AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

JOHNSON, Justice.

Defendant appeals his conviction and sentence for the domestic assault of his wife. Defendant claims that (1) the trial court committed plain error when, while instructing the jury, it made a contradictory statement that the State's burden of disproving selfdefense was by a preponderance of the evidence; and (2) the security measures taken by a victim of a crime and expenses incurred by a victim in preparation of and participation in a trial are not authorized by statute to be compensable as restitution. We disagree as to the first issue and affirm defendant's conviction. We agree, however, that the restitution order was unauthorized.

The evidence showed that at the time of the offense, defendant and Corinne Forant were married with four children. Upon returning home from work on the evening in question, defendant and his wife had an argument over household issues. While defendant was in a separate room, a fight ensued between two of the children in Corinne's presence in the kitchen. Corinne attempted to discipline one of the children, but the child responded by biting her leg. Corinne then attempted to spank the child, but instead struck the child's arm. Defendant entered the room and witnessed his wife hitting the child. Defendant then assaulted his wife by throwing her into a table, hitting her head on the floor, and striking her chin. Corinne Forant made numerous attempts to call the police, which defendant thwarted. At trial, defendant asserted a claim of self-defense and defense of his child. The court instructed the jury regarding self-defense in relevant part as follows:

Since the evidence in this case does raise the issue of self-defense, the burden is on the State to prove beyond a reasonable doubt that the acts of the defendant were not done in self-defense. If the State fails to prove to your satisfaction beyond a reasonable doubt that the defendant did not act in self-defense, then the State has not met its burden of proving that the use of force was unlawful and you must find the defendant not guilty.

... Thus, in order to overcome the defendant's claim of self-defense, the State must prove each of the following essential elements by a preponderance of the evidence: First, that the defendant did not reasonably believe that he was in imminent danger of immediate bodily harm; second, that the defendant did not reasonably believe that the use of force was necessary to avoid danger and; third, that the defendant did not use only that force which was reasonably necessary to repel his attacker.... If you find that the State has established each of these elements beyond a reasonable doubt, then you may find that the claim of self-defense has not been successfully established."

(Emphasis added.)

The defense did not object to the jury instructions, and the jury returned a verdict of guilty. Defendant was sentenced to not less than eleven and not more than twelve months, all suspended except for sixty days on a work crew.

At the sentencing hearing, the victim requested restitution for the following: (1) security measures taken after the assault (the cost of changing her telephone number and for changing the locks on her home, $115.00), and (2) expenses incurred due to meetings with the prosecutor's office in preparation for trial and for attending court proceedings (lost wages due to missed work, $499.20, child care costs, $312.00, and mileage expenses, $67.50). Defendant argued that the items requested were not proper subjects of restitution under the restitution statute. The trial court ordered restitution for all of what was requested, totalling $993.70. Defendant now appeals, challenging the conviction and the restitution order.

I.

Defendant first argues that the trial court committed error when it instructed the jury that the State could disprove self-defense by a preponderance of the evidence. We disagree. When the instructions are viewed in their entirety, defendant has failed to show that he was prejudiced by the reference.

Since the defendant failed to object to the jury instructions at trial, reversal is appropriate only if the court below committed plain error. See V.R.Cr.P. 30, 52(b); State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 26 (1993). Plain errors are those that affect a defendant's substantial rights that were not brought to the trial court's attention. See V.R.Cr.P. 52(b). Plain error exists only in extraordinary situations where it is "obvious and strikes at the heart of defendant's constitutional rights or results in a miscarriage of justice." State v. Streich, 163 Vt. 331, 353, 658 A.2d 38, 53 (1995). When determining plain error in the content of jury instructions, we review the instructions in their entirety. See Pelican, 160 Vt. at 539, 632 A.2d at 26. If the charge as a whole is not misleading, there is no plain error. See Streich, 163 Vt. at 352-53, 658 A.2d at 53; Pelican, 160 Vt. at 539, 632 A.2d at 26.

Defendant is correct that the proper jury instruction is that the State must disprove self-defense beyond a reasonable doubt. See State v. Bartlett, 136 Vt. 142, 144, 385 A.2d 1109, 1110 (1978). The question is whether a single reference to a preponderance standard in the middle of the charge misled the jury. The court made three references to the State's burden of disproving self-defense as beyond a reasonable doubt, and one statement that the State could disprove self-defense by a preponderance of the evidence. This error went unnoticed by all, and in all probability was not noticed by the jury in light of the entire instruction. The jury did not ask for clarification on this issue. The error was not obvious and is unlikely to have confused the jury. Cf. Streich, 163 Vt. at 353, 658 A.2d at 53 (two isolated phrases in lengthy jury charge not plain error where court repeatedly instructed jury that State's burden of proof was beyond a reasonable doubt and charge as whole was not misleading). Defendant has failed to show that he was prejudiced by this instruction.

II.

We turn now to whether the trial court erred in ordering defendant to pay the victim restitution for costs she incurred in meeting with the prosecutor and attending court proceedings and for security measures she took at home. Defendant argues first that the expenses his wife incurred in preparation for and participation in trial are costs of prosecution that are not taxable against him under 13 V.S.A. § 7172(b), and therefore may not be ordered as restitution.

Section 7172(b) states that the "[c]ost of prosecution shall not be taxed against a respondent in any criminal case." Similarly, § 7253 requires the cost of prosecution for a criminal case to be paid by the State. Although neither statute defines "cost of prosecution," we have previously held that a defendant in a criminal case cannot be ordered to make restitution to the State for costs of a search warrant, subpoenas, continuance, term fees, travel fees, and attorney's fees. See Fay v. Barber, 72 Vt. 55, 57-58, 47 A. 180, 182 (1899); In re Pierce, 103 Vt. 438, 439, 156 A. 137, 138 (1931). If subpoenas and travel fees for witnesses are non-taxable costs of prosecution, it is logical to conclude that the expenses of a prosecution witness in attending and preparing for trial, even if voluntarily incurred, should be treated the same. The purpose of the restitution statute is not to shift the costs of prosecution to the defendant by providing a detour around the statutes placing that burden on the State. Therefore, despite our recognition that Corinne Forant's travel and child-care expenses are real costs to her, they are nonetheless so directly related to the cost of prosecution that they are not taxable to defendant under the present statutory scheme.

The State directs our attention to our recent decision in State v. Lewis, 167 Vt. ___, 711 A.2d 669 (1998). In Lewis, we held that the cost of extraditing a defendant after he escaped from custody and fled the jurisdiction were not costs of prosecution, and were properly chargeable to him as restitution. Because the defendant in Lewis was a fugitive from justice, the costs incurred to extradite and return him to the custody of the Commissioner were more closely related to restoring custodial authority on prior charges than to his subsequent prosecution for escape. The decision was limited to the specific facts of the case, see id. at ___, 711 A.2d at 672, and does not support the reimbursement of costs incident to a witness's preparation for or attendance at trial.

Whether the costs incurred by Corinne Forant to change the locks and telephone number at her home are subject to restitution presents a different question. Because these are not costs of prosecution, but are expenditures by a victim of a crime, we analyze them under the restitution statute. Defendant argues that the restitution statute is narrowly drawn and permits only direct rather than consequential losses. He contends the expenses incurred by his wife were for the purpose of improving her security, and were not to repair property damage inflicted by him. Therefore, he concludes that the expenditures were not directly related to the crime and are not compensable.

Section 7043 provides:

(a) Restitution shall be considered in every case in which a victim of a crime has suffered a material loss or has incurred medical expenses . . . .

(b) When ordered, restitution may include;

(1) return of property wrongfully taken from the victim; or

(2) cash or installment payments to the victim or to the victim's

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