State v. Michael Abel
State v. Michael Abel
Opinion
¶ 1. 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 *441 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 *442 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 the defendant is guilty beyond a reasonable doubt."
State v. Delisle
,
¶ 10. As we have explained, "[t]he Double Jeopardy Clause safeguards a criminal defendant from facing multiple punishments for the same offense."
¶ 11. "There is no bright-line rule" for determining multiplicity-doctrine violations.
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
,
¶ 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
,
¶ 14. In reaching our conclusion, we distinguished
State v. Perrillo
,
¶ 15. The
Fuller
Court distinguished
Perrillo
because the defendant's actions in that case "happened close in time, they were uninterrupted and occurred in the same geographic location, and there was no evidence suggesting any time between touches for [the defendant] to reflect on his conduct and recommit himself to abusing the victim, thereby making it more likely that his actions constituted one continuous lewd act."
Fuller
,
¶ 16. Considering the evidence in the instant case in the light most favorable to the State, we conclude that the alleged acts could be charged as separate and distinct offenses. While the alleged acts happened close in time and in the same geographic location, they were interrupted. The complainant left the kitchen, took a highchair to a bedroom, and then placed a child in the highchair. During this time, defendant called the school. This interval provided defendant sufficient time to "reflect on his conduct and recommit himself to abusing the victim."
¶ 17. It is elemental that "a defendant is not immune from multiple punishments or trials simply because there is only one victim of the defendant's assaultive conduct."
State v. Kleckner
,
¶ 18. Finally, defendant argues that the court committed plain error in instructing the jury on the domestic-assault counts. According to defendant, there was no evidentiary support for two misdemeanor convictions and the court misstated the law by failing to set forth the law of Fuller in its special jury verdict form. We have rejected defendant's evidentiary argument above. We similarly reject his plain-error argument as to the special verdict form.
¶ 19. As we have explained:
Four factors guide our plain error analysis: (1) there must be an error; (2) the error must be obvious; (3) the error must affect substantial rights and result in prejudice to the defendant; and (4) we must correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. When reviewing possible error in a jury instruction, we examine the instructions in light of the record evidence as a whole and determine if any error would result in a miscarriage of justice. Moreover, we review the instructions in their entirety. If the charge as a whole is not misleading, there is no plain error. This is a very high bar-we find plain error only in rare and extraordinary cases.
State v. Herrick
,
¶ 20. The instructions, viewed in their entirety, were not misleading. The court properly instructed the jury as to the elements of each domestic-assault count. To convict defendant on the first count, the jury was required to find that defendant intentionally caused the complainant bodily injury by repeatedly striking her in the ribs. To convict on the second count, the jury had to find that defendant intentionally caused the complainant bodily injury by striking her arm. The jury found, as a matter of fact, that defendant possessed *445 the requisite criminal intent as to each charge and that he committed the acts in question.
¶ 21. The special verdict form was drafted to respond to the concern that defendant expressed at trial. Defendant argued that there was one continuous assault because the evidence showed no "break in time" between the charged acts. He asserted that he could strike the complainant in the arm and rib at the same time and he maintained that this is what the evidence showed. The State took the position that this issue could be decided after the case went to the jury and that the jury was entitled to consider both charges because "there were several different conducts that qualified under different offenses." The court asked if the parties wanted a special interrogatory to ask the jury if it found that "X, Y, and Z conduct happened," and the parties could then "have a legal argument about the effect of the conduct." Defendant stated that he did not want such an instruction. Ultimately, and without objection, the jury was asked to decide-if it found defendant guilty of the two domestic-assault charges-whether "they constituted one continuous assault or two separate assaults, separated by time."
¶ 22. Defendant argues that the special jury verdict sheet should have "set forth the law of
Fuller
," presumably meaning that the court should have asked the jury to make findings as to the factors discussed above. Citing
State v. Rounds
,
¶ 23. In any event, the special verdict form, while not setting forth all of the Fuller factors, encompassed a key component of several different factors, namely whether time elapsed between successive parts of defendant's conduct, and implicitly, given the testimony in this case, whether an intervening event occurred between successive parts of the defendant's conduct. As noted above, the complainant testified that she left the kitchen at one point and she stated that some of the hitting occurred before she left the kitchen and "[s]ome was after." The jury rejected the notion that this was a "continuous" assault, i.e., one "marked by uninterrupted extension in space, time, or sequence." Continuous, Merriam-Webster Online Dictionary, Merriam-Webster.com [https://perma.cc/BHY5-UD9L]. Instead, it found a separation of time between the charged acts. In light of the instructions as a whole, and given that the jury explicitly considered the temporal question, we find no plain error.
Affirmed .
Reference
- Full Case Name
- STATE of Vermont v. Michael ABEL
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- 5 cases
- Status
- Published