State v. Michael Abel, 210 A.3d 439

Background

Defendant was tried by jury for multiple assault-related charges based on violence against his cohabiting partner and their three children; two domestic-assault counts charged separate acts: hitting the complainant in the ribs and hitting her in the arm.
Complainant testified defendant shoved her while she held the youngest child; she fell, moved a highchair to a bedroom, placed the child there, and during this time defendant called the school. She testified some hits were before she left the kitchen and some were after; he also put hands around her neck after she placed the child in the bedroom.
At the close of evidence defendant moved under V.R.Cr.P. 29, arguing the two charged assaults were a single continuous assault (multiplicity/double jeopardy). The motion was denied; one aggravated-assault count was reduced to misdemeanor domestic assault.
The court used a special verdict interrogatory (no objection) asking the jury, if it found guilt on both counts, whether there was one continuous assault or two separate assaults separated by time.
The jury convicted on both domestic-assault counts and explicitly found two separate assaults separated by time. Defendant renewed his Rule 29 motion postverdict and appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether two domestic-assault convictions violated Double Jeopardy/multiplicity doctrine	The State argued evidence supported separate acts and the jury could determine temporal separation	Abel argued the charged acts were one continuous assault with no break to form a new intent, so only one punishment permitted	Affirmed: evidence could support two separate assaults; no Double Jeopardy violation
Whether the trial court erred in sending both counts to the jury (sufficiency of evidence)	State maintained sufficient evidence of interruption and separate acts (call to school, complainant leaving kitchen)	Abel contended no evidentiary break; hitting could have been simultaneous or continuous	Held: Viewed favorably to State, reasonable jury could find an intervening event and time to reflect, supporting separate offenses
Whether special verdict form/jury instruction constituted plain error	State relied on jury interrogatory resolving temporal issue; no objection at trial	Abel argued the form failed to instruct Fuller factors and misstated law, causing prejudice	Held: No plain error—instructions taken as whole were not misleading; interrogatory captured the key temporal question
Standard for distinguishing single continuous act vs. separate acts	N/A (court applied established factors)	Abel sought a strict rule requiring clear temporal break before separate intent	Held: Court applied fact-intensive Fuller factors (elapsed time, location, intervening events, opportunity for reflection) and found sufficient temporal separation here

Key Cases Cited

State v. Delisle, 162 Vt. 293 (discussing standard for reviewing denial of judgment of acquittal)
State v. Neisner, 2010 VT 112 (review of legal questions de novo)
State v. Fuller, 168 Vt. 396 (establishing factors for distinguishing separate assaults: elapsed time, location, intervening event, opportunity for reflection)
State v. Perrillo, 162 Vt. 566 (single episode of sexual misconduct may be one offense; multiple touches can be a single act)
State v. Garnett, 298 S.W.3d 919 (assaults separated by time can be separate offenses when defendant had time to reconsider)
State v. Carrolton, 191 Vt. 68 (noting pause/reflection supports separate intent)
State v. Kleckner, 867 N.W.2d 273 (a single victim does not preclude multiple punishments when multiple assaults separated by time occur)
Missouri v. Burns, 478 S.W.3d 520 (close-in-time acts can be separate when there is a break allowing reconsideration)
State v. Herrick, 190 Vt. 292 (plain-error review standard for jury instructions)