39 A.3d 705
Vt.2011Background
- State charged Carrolton with two counts of lewd-and-lascivious conduct under 13 V.S.A. § 2601 based on a single alleged episode.
- Complainant testified in deposition that defendant rubbed her back, stomach, breasts, and vaginal area while she lay in bed.
- The trial court, relying on Perillo, merged the two counts into one, finding the touching essentially continuous in time and location.
- The State was granted an interlocutory appeal to seek merger reversal under 13 V.S.A. § 7403(b).
- The State argued Perillo should be overruled so touching two distinct intimate parts could support two separate offenses.
- The defense urged maintaining Perillo, arguing a single episode should not generate multiple offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Perillo should be overruled to allow multiple offenses for touching distinct intimate parts. | State argues Perillo is outdated and should be overruled. | Carrolton contends Perillo remains controlling law. | Perillo remains good law; merger affirmed. |
Key Cases Cited
- State v. Perillo, 162 Vt. 566 (1994) (holding that single episode generally supports a single lewd-and-lascivious count)
- State v. Fuller, 168 Vt. 396 (1998) (distinguished Perillo on different factual grounds; not overruling it)
- Harrell v. State, 277 N.W.2d 462 (Wis. Ct. App. 1979) (time interval between acts factors into whether acts are single or multiple offenses)
- Eaddy v. State, 789 So.2d 1093 (Fla. Dist. Ct. App. 2001) (analysis of multiple acts within a single episode; requires pause/intent to form new offense)
- Cullen v. United States, 886 A.2d 870 (D.C. 2005) (not convinced multiple touched body parts in single event constitute separate offenses)
- Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. Ct. 2007) (two separate statutes; different elements; distinguishable from Perillo context)
- State v. De’Armond, 654 S.E.2d 317 (Va. Ct. App. 2007) (analysis of separate offenses based on act specifics and timing)
- Baker v. Gearinger, 293 F.3d 1353 (11th Cir. 2002) (federal habeas context; limited persuasive value)