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State v. Albarelli

Supreme Court of Vermont

November 18, 2016

State of Vermont
Cameron Albarelli

         On Appeal from Superior Court, Chittenden Unit, Criminal Division, Michael S. Kupersmith, J.

          Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

          Matthew F. Valerio, Defender General, and Joshua O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

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

          SKOGLUND, J.

         ¶ 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.

         I. Factual Background

         ¶ 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 five people.

         ¶ 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 three charges.

         ¶ 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 conditions.

         ¶ 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.

         II. 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.[1]

         ¶ 18. We find no error and affirm the lower court's refusal to issue a self-defense instruction.

         III. Disorderly Conduct

         ¶ 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 ...

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