Supreme Court On Appeal from Superior Court, Orleans Unit,
Criminal Division September Term, 2018 Howard E. Van
Pepper, Deputy State's Attorney, Montpelier, for
Matthew Valerio, Defender General, and Dawn Matthews,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
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
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. 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 domestic
assault. 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, 162 Vt. 293, 307, 648 A.2d 632, 641 (1994)
(quotation and alterations omitted). We review legal
questions de novo. State v. Neisner, 2010 VT 112,
¶ 11, 189 Vt. 160, 16 A.3d 597. As set forth below, we
conclude that there was ...