Appeal from Superior Court, Chittenden Unit, Criminal
Division, Michael S. Kupersmith, J.
J. Donovan, Jr., Chittenden County State's Attorney, and
Pamela Hall Johnson, Deputy State's Attorney, Burlington,
Matthew F. Valerio, Defender General, and Joshua O'Hara,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. Defendant Cameron Albarelli appeals his convictions
following a jury trial in the Superior Court, Chittenden
Unit, Criminal Division. Defendant asks this Court to reverse
his convictions of simple assault, disorderly conduct, and
providing false information to a police officer. He also
challenges various conditions of his probation. We affirm
defendant's convictions and a number of defendant's
probation conditions, but strike several probation
conditions, and remand.
2. This case arises from a fight involving two groups of men
that occurred on July 18, 2013, around midnight at the north
end of Church Street in Burlington. As a result of the
altercation, defendant was charged with simple assault,
disorderly conduct, and giving false February 3, 2015, the
State presented several witnesses to prove the charges,
including the complainant, two eye witnesses socializing with
defendant's group, one eye witness that was unaffiliated
with either of the parties, and the officer who assisted with
the arrest. The witnesses described the events on the night
of July 18 as follows.
3. That night, the complainant, his brother, and four other
friends were bar hopping on Church Street to celebrate the
complainant's brother's wedding, which was the
following day. After a drink at a bar on Pearl Street at the
north end of Church Street, the bachelor party intended to
move back south on Church Street to visit another bar. While
they were walking, the complainant's party observed what
was described as "not a friendly conversation"
between an older man sitting alone on a bench and a group of
4. Defendant was part of that group. According to trial
testimony, he and four friends-two male and two female-were
walking north on Church Street when the older man said
something to the group and, in response, defendant and his
two male friends yelled at and threatened the man.
5. Observing this argument, the complainant's party
suggested that the three men, including defendant, leave the
man alone. They were told to mind their business. Words were
exchanged between the two groups until defendant
"freaked out" and attacked the complainant's
brother. Members of both parties moved to separate defendant
and the complainant's brother. The complainant, who was
about 6'3" tall, placed himself between the men,
with his back to his brother and his face to the defendant,
who was about 5'9" tall.
6. Defendant continued his attack, but now targeted the
complainant. Trial witnesses' accounts differed regarding
the location of the fight and the direction in which the
fight was moving, but they all agreed that the complainant
did not raise his hands or fight back during defendant's
attack. Instead, the complainant walked towards defendant to
maintain the space complainant in the face. After defendant
landed three or more punches, splitting the complainant's
lip, a member of the complainant's party called the
Burlington Police Department, and defendant and his two male
friends fled south on Church Street.
7. With a description of two males, one in a sweatshirt and
another in a grey t-shirt with "Chicago" written on
it, the arresting officer and assisting officer circled the
area, observed two individuals matching the description, and
stopped them for questioning. Defendant initially denied
being on Church Street or being involved in any altercation,
but after continued questioning, the assisting officer heard
defendant say, without admitting to being in the fight, that
he was outnumbered and had fled south on Church Street. When
the officers asked defendant to identify himself, he provided
the name "Cameron Mitchell" and the birth date July
14, 1994. The officers discovered no Vermont records under
the provided name and confronted defendant about the crime of
providing false information to a police officer. It was then
that defendant gave his full name, "Cameron Mitchell
Albarelli, " and correct birth date, July 14, 1995.
Following this exchange, defendant was taken into custody and
charged with the offenses listed above.
8. After the State concluded its case, defendant chose not to
present witnesses or evidence. At a subsequent charge
conference, defendant asked the court to instruct the jury on
self-defense. The court refused to give a self-defense
instruction because "no evidence at all" raised the
issue of whether defendant believed he was in immediate
danger of bodily harm.
9. Subsequently, the jury returned guilty verdicts on all
10. At sentencing, defendant asked the court to impose a
sentence crafted around probation and rehabilitation with no
further incarceration. The State requested two additional
months of incarceration, as well as substance-abuse and
anger-management counseling. The court imposed a sixty-day to
two-year sentence, with all but sixty days suspended, which
were to be spent on work crew. In addition, the court imposed
"standing conditions A through N" and several other
11. This appeal followed. Defendant argues that (1) his
simple assault conviction should be reversed because the
trial court failed to give a self-defense instruction; (2)
his disorderly conduct conviction should not stand because
the evidence was insufficient to convict and because the
court failed to instruct the jury on unanimity; (3) his false
information to a law enforcement officer conviction should be
reversed because there was insufficient evidence to prove he
had the purpose to deflect an investigation; and (4) the
trial court committed a reversible sentencing error when it
imposed defendant's probation conditions.
Simple Assault and Self-Defense Instructions
12. Defendant challenges the trial court's refusal to
provide a self-defense instruction to the jury. We affirm.
13. To be entitled to a defense instruction, defendant must
establish a prima facie case for each element of the defense
asserted. See State v. Wetter, 2011 VT 111, ¶
17, 190 Vt. 476, 35 A.3d 962 (citing State v. Knapp,
147 Vt. 56, 59, 509 A.2d 1010, 1011 (1986)). Thus, a
self-defense instruction is warranted only if a defendant can
show that (1) he had an honest belief that he faced imminent
peril of bodily harm and that (2) the belief was grounded in
reason. See State v. Shaw, 168 Vt. 412, 414, 721
A.2d 486, 489 (1998). 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." State v. Forant, 168 Vt.
217, 220, 719 A.2d 339, 401 (1998). Here, the court concluded
that defendant did not meet his initial burden, and thus was
not entitled to a self-defense instruction. We agree.
14. First, there is a dearth of evidence in the record to
show that defendant believed he was in peril of imminent
bodily harm. In fact, there is testimony that suggests the
opposite. Two of the State's witnesses testified that,
after the initial altercation between defendant and the
complainant had ended and the complainant's party had
decided to remove themselves and call the police, defendant
pursued the complainant's party, threatening to attack
again. Another of the State's witnesses testified that
defendant, with his friend's encouragement, continued
hitting the complainant, even after it was apparent that the
complainant was not striking back. Defendant suggests the
evidence supports a belief of imminent peril, but he points
only to the size difference between defendant and the
complainant, compounded by the testimony that the complainant
walked towards defendant.
15. The trial court did not err when it found that this
evidence, as a whole, did not support defendant's belief
of imminent bodily harm. See, e.g., People v. Blair,
No. 298377, 2011 WL 4501909, *3 (Mich. Ct. App. Sept. 29,
2011) ("The evidence regarding the size difference
between the victim and defendant is not enough to support an
inference of self-defense."); State v.
Chambers, 671 S.W.2d 781, 783 (Mo. 1984) (en banc)
("Something more than fear of size, however, is required
to justify . . . self-defense."); State v.
Davis, No. 01JE-18, 2002 WL 924609, *2 (Ohio Ct. App.
2002) (refusing to find defendant had belief of imminent
bodily harm and holding that even though victim was walking
towards and pointing his finger at defendant, victim
"was not waiving his fists in [defendant's] face,
" his "hand was not even balled into a fist, nor
was [he] even touching [defendant]"); cf. People v.
Rodriguez, 631 N.E.2d 427, 430 (Ill.App.Ct. 1994)
(finding defendant presented sufficient evidence to raise
issue of self-defense when record indicated that-along with
evidence showing defendant was physically smaller than
victims- defendant observed men beating another man;
defendant attempted to break up fight; defendant was hit over
head with beer bottle; defendant ran away but was chased by
eight to ten larger men; and when defendant was cornered, he
took out little pocket knife and "started swinging
because [he] was scared").
16. Further, defendant failed to show that his belief of
imminent bodily harm was based in reason. Without citing
supporting case law, defendant argues that the court should
have inferred the belief was reasonable from the evidence of
the size difference and the forward progress of the
complainant. This Court agrees with the lower court's
conclusion there was "no evidence at all that [the
complainant] was acting aggressively toward [defendant],
" and thus concludes that the presented evidence was
insufficient to infer a belief based in reason. See, e.g.,
People v. Dillard, 745 N.E.2d 185, 189 (Ill.App.Ct.
2001) (finding that evidence that victim was physically
larger and had initiated first of two altercations could not
support self-defense instruction); Rajnic v. State,
664 A.2d 432, 436 (Md. Ct. Spec. App. 1995) (affirming that
evidence was sufficient to support jury's finding that
defendant did not have reasonable belief of bodily harm, even
though victims were larger than defendant, intoxicated, and
"charged into defendant's bedroom on the heels of
the threats"); State v. Broussard, 768 S.E.2d
367, 371 ( N.C. Ct. App. 2015) (denying self-defense
instruction where "uncontroverted evidence shows that
defendant fully and aggressively participated in the
altercation, " even though defendant was significantly
shorter and lighter than victim).
17. Defendant further contends that the law does not require
defendant to wait until "[the complainant] cocked his
fist back to punch" in order to be entitled to a
self-defense instruction. We agree; it is well-established
that "[t]he right of self-defense does not require that
one be actually assaulted." State v. Wheelock,
158 Vt. 302, 307, 609 A.2d 972, 975 (1992). As described
above, however, the right of self-defense does require that a
defendant have an honest and reasonable belief that he faces
imminent bodily harm. Shaw, 168 Vt. at 414, 721 A.2d
at 489. Here, no evidence sufficiently established this
belief. Because "[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.
Nunez, 162 Vt. 615, 617, 647 A.2d 1007, 1009 (1994)
(mem.), the lower court did not err by refusing to instruct
on self-defense after defendant failed to prove the necessary
prima facie case.
18. We find no error and affirm the lower court's refusal
to issue a self-defense instruction.
19. Couched in the self-defense jury instruction argument,
defendant briefly contends that the evidence was insufficient
to convict on disorderly conduct and that "there [was] a
jury unanimity problem because the jury instructions did not
require the jurors to be unanimous as to the ...