Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2013-233

                                      FEBRUARY TERM, 2014

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
    v.                                                 }    Criminal Division
                                                       }
                                                       }
 John R. Kunhardt                                      }    DOCKET NO. 3927-9-12 Cncr

                                                            Trial Judge: Michael S. Kupersmith

                          In the above-entitled cause, the Clerk will enter:

        Defendant appeals his conviction of simple assault, and the resulting sentence. On
appeal, defendant argues that the court’s sentence was excessive and an abuse of discretion, and
that the court plainly erred in failing to instruct the jury on the offense of simple assault by
mutual consent. We affirm.

       In September 2012, defendant was charged with one count of simple assault. Defendant
and the victim were both college students, and the charges stemmed from altercation between
them at a house party. According to the victim and witnesses, as the victim left the party he
encountered defendant and they had a verbal argument. Defendant approached the victim, who
turned to communicate with his friends. When the victim turned back, defendant head-butted
him, and tackled him to the ground. The victim sustained serious injuries to his face. At trial,
defendant claimed self-defense. Defendant testified on his own behalf and claimed the victim
came at him with his hands up, and defendant’s actions were defensive. The court instructed the
jury on self-defense. Defendant did not raise the issue of simple assault by mutual consent or
otherwise object to the instructions. Following a one-day trial, the jury found defendant guilty.

        The court held a sentencing hearing. The State argued for a sentence of four-to-eight
months, all suspended except ten days of work crew. The State noted that defendant was
approved for home confinement, but did not request it. Defendant expressed remorse and argued
for a deferred sentence, which defense counsel stated had been offered prior to trial. The court
sentenced defendant to six-to-twelve months all suspended except six months. Fifteen days of
the six-month period were to be served in jail and the remainder on home confinement.
Defendant appeals.

        On appeal, defendant argues that the sentence amounted to an abuse of discretion because
he has no prior record, he was offered deferred probation prior to trial, and neither the State nor
defendant sought home confinement at sentencing. Defendant claims that the court was
effectively punishing him for going to trial.
       The trial court has broad discretion in crafting a sentence. State v. Keiser, 174 Vt. 87,
101 (2002). We will thus generally affirm a sentence if it falls within the statutory limits and
was not based on improper or inaccurate information. State v. Ingerson, 2004 VT 36, ¶ 10, 176
Vt. 428.

        There was no abuse of discretion in this case. The court imposed a sentence within the
statutory limits. Further, the court based its decision upon legitimate sentencing goals. See id.
¶ 13 (explaining that sentence was within court’s discretion where it was within statutory limits
and grounded on legitimate goals of criminal justice). At sentencing, the court reasoned that the
sentence was necessary given the extent of injury caused, the purposeful nature of the act and the
need to deter other young people from similar acts. Id. (including as goals of criminal justice
punishment, prevention, restraint, rehabilitation, deterrence, education and retribution).

        There is no evidence to support defendant’s contention that the court acted out of
vindictiveness because defendant chose to go to trial. Even accepting defendant’s representation
that his sentence exceeded an offer made prior to trial, this is insufficient to demonstrate
vindictiveness. See State v. Davis, 155 Vt. 417, 421 (1990) (explaining “that the mere disparity
between plea-bargained and post-trial sentences does not mandate a presumption of
vindictiveness”). Vindictiveness has been found where judges have commented “on the high
cost of trials and on the defendant’s insistence on exercising his or her right to a trial, or on the
defendant’s unquestionable guilt and the consequent lack of necessity for a trial.” Id. (citation
omitted). Here, the court did not make any such comments or indicate that the sentence was
punishment for going to trial.

        Generally, defendant raises considerations that may support a motion to reduce sentence
in the trial court, rather than, as he attempted here, a challenge to the sentence as unlawful. See
V.R.Cr.P. 35(b). He may still pursue such a remedy within 90 days of our judgment in this
appeal. Id.

        Next, defendant argues that the court committed plain error by failing to include simple
assault by mutual consent as a lesser-included offense. Defendant claims that the undisputed
evidence established that there was an argument between defendant and the victim and that some
evidence demonstrated that the victim walked toward defendant and raised his hands before the
physical altercation. Defendant claims that this evidence was sufficient to show that the victim
intended to fight him, and a charge of simple assault by mutual consent was appropriate.

        Defendant did not request an instruction on assault by mutual consent, but he argues that
the court’s omission of such an instruction was plain error, requiring reversal. Plain error is
limited to occasions when there was error, the error was obvious, the error affected substantial
rights and resulted in prejudice, and the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. State v. Cahill, 2013 VT 69, ¶ 15.

        Here, there was no error, let alone plain error, in omitting an instruction on assault by
mutual consent as a lesser-included offense. A defendant is entitled to a jury instruction on a
lesser-included offense when the evidence reasonably supports the instruction. State v. Russell,
2011 VT 36, ¶ 16, 189 Vt. 632 (mem.). “An offense is considered lesser included when it is
composed of some, but not all, elements of the greater offense and does not have any element not



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included in the greater offense.” State v. Myers, 2011 VT 43, ¶ 19, 190 Vt. 29 (quotation
omitted).

        Assault by mutual consent contains elements not included in the offense of simple
assault, and therefore is not a lesser-included offense of simple assault. Assault by mutual
consent requires proof that “the offense is committed in a fight or scuffle entered into by mutual
consent.” 13 V.S.A. § 1023(b). This additional element is not part of simple assault. Id.
§ 1023(a). Because assault by mutual consent contains an element not included in simple
assault, it is not a lesser included offense and omitting an instruction was not error. See Myers,
2011 VT 43, ¶ 20 (holding there was no error in failing to instruct on simple assault where it was
not a lesser-included offense of aggravated assault as charged).

       Affirmed.

                                               BY THE COURT:


                                               _______________________________________
                                               John A. Dooley, Associate Justice

                                               _______________________________________
                                               Beth Robinson, Associate Justice

                                               _______________________________________
                                               Geoffrey W. Crawford, Associate Justice




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