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State v. Fonseca-Cintron

Supreme Court of Vermont

November 8, 2019

State of Vermont
Onix Fonseca-Cintron

          On Appeal from Superior Court, Windham Unit, Criminal Division

          Michael R. Kainen, J. David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.

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

          REIBER, C.J.

         ¶ 1. Defendant appeals his three domestic assault convictions. He argues that the trial court erred in failing to provide the jury with a self-defense instruction. He also argues that that the underlying conduct supports only one criminal offense, not three. We affirm.

         I. Facts

         ¶ 2. Defendant and complainant began a sexual relationship in 2011. Complainant was married and her husband lived overseas. In 2015, complainant's husband moved to the United States to live with her and she ended her relationship with defendant. Soon afterward, complainant visited defendant at his home, where they had a series of disagreements that led to the charges against defendant. Their accounts of what happened that day diverged at trial. We recount complainant's testimony first and defendant's testimony second.

         ¶ 3. According to complainant, defendant initially accepted the end of their relationship but later became very upset. Complainant went to defendant's house at his request and they argued. She left but came back when urged by defendant. They ate dinner and then had sex. But soon defendant began insulting her and pushed her as she was about to leave. Complainant pushed him back. The two argued and she left.

         ¶ 4. Complainant returned almost immediately to look for a missing ring. Defendant closed the door behind her and locked it. Complainant put down her phone and keys on the kitchen counter and started searching for the ring. Soon she noticed that defendant had taken her keys and demanded them back. Defendant grabbed complainant by the hair and dragged her around the house while hitting her. She felt her hair ripping. Defendant grabbed at complainant's earrings and other jewelry. Complainant bit defendant and tried to fight him off. He dragged her into the bedroom and choked her. She stopped fighting. Defendant started punching complainant's face; she fought him again, broke free, and ran to the living room. Defendant followed and began hitting complainant with a sheathed machete, saying he was going to kill her. Then defendant stopped and returned complainant's keys. Complainant saw there was a "black thing on his eyes," but she did not know what it was. She left and reported the incident to the police.

         ¶ 5. Defendant disputed most of complainant's testimony. According to him, after they had dinner and sex, he told complainant to leave but she became angry and "jumped over [him] like an animal." Defendant video recorded part of this encounter, which was played for the jury. Defendant further testified that when complainant returned to search for her ring, she began insulting him and making a mess. Defendant followed complainant into the bedroom and told her to stop, after which she became upset and hit him. He pushed her away, told her to stop again, and went into the bathroom. When he came out, she came out of the bedroom with his bag of jewelry in hand. Defendant followed complainant to the kitchen, telling her to give him the bag. She took a broom from the closet and hit him in the face with it. Then she dropped the broom and left. Defendant went looking for towels to dry the blood on his face. Defendant denied punching the complainant, pulling out her hair, or hitting her with the machete. He testified as follows:

[Defense attorney]: When [the complainant] was punching you and kicking you, like you said, what did you do?
[Defendant]: I was just trying to push her back, taking her away from me.
. . . .
[Defense attorney]: Did you ever on that day . . . punch [the complainant]?
[Defendant]: No; the only thing that I was trying was to take her away from me.
[Defense attorney]: Did you ever pull her hair out?
[Defendant]: I never pulled her hair . . . .
. . . .
[Defense attorney]: And at any time during that day, on any occasion, did you take the machete and hit her with any part of it?
[Defendant]: No.

         Additionally, the defense attorney asked: "So just so we're clear, when [the complainant] said you choked her, strangled her in the bedroom, in the back bedroom, did you agree with that? ...

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