State v. Morris D. Nelson, 246 A.3d 937

Background

Defendant (Nelson) taught at a residential treatment school; he developed a close relationship with the complainant, a student in New Hampshire custody of the child‑welfare agency (PCA/DCF involvement).
Complainant began staying regularly at defendant’s home (including December 2015); multiple nonconsensual sexual acts were alleged in Vermont (bedroom assaults, plus other incidents on the property, in a shed, and in a truck).
State charged: Count I — repeated aggravated sexual assault (common scheme/repeated acts) under 13 V.S.A. § 3253(a)(9); Count II — sexual assault of a person under 18 entrusted to actor’s care by authority of law under 13 V.S.A. § 3252(d); Count III — sexual exploitation of a minor under 13 V.S.A. § 3258(c).
Trial court limited charges to acts in Vermont after defendant’s school termination (Dec. 2015) and the State elected a specific predicate act (penis‑to‑vagina contact in basement bedroom in Dec. 2015) as the foundational event for the counts.
Jury convicted on all three counts; post‑trial and on appeal defendant raised double‑jeopardy, insufficiency of evidence for entrustment, and failure to give a unanimity instruction as to the repeated‑acts aggravator.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Nelson)	Held
1. Double jeopardy — Counts I (aggravated/repeated) v. II (entrustment)	Different elements: Count I requires nonconsensual repeated acts/common scheme; Count II requires under‑18 entrustment by authority of law — both may be punished	Convicting on both punishes same core sexual conduct and thus violates double jeopardy	Not duplicative; convictions on both Counts I and II may stand (Blockburger elements test satisfied)
2. Double jeopardy — Counts II (entrustment) v. III (sexual exploitation)	Statutes have distinct elements (age gap, abuse of position) so both should stand	Both counts were based on the same factual predicate (PCA/DCF authorization), so convictions duplicate punishment	Duplicative as charged here; Count III (sexual‑exploitation) vacated at State’s request
3. Sufficiency of evidence — entrustment element for Count II	Evidence that NH DCF authorized complainant living with defendant (PCA/permission) satisfies "entrusted to care by authority of law"	Argued no formal guardianship or decision‑making authority existed so insufficiency of proof	Statute does not require legal decision‑making authority; jury had sufficient evidence to find entrustment by authority of law; Count II sustained
4. Jury unanimity — repeated‑acts aggravator for Count I	State elected a specific predicate sexual act and presented materially distinguishable evidence of other acts; jury instructions adequate overall	Trial court failed to give a specific unanimity instruction for which acts constituted the "repeated" element — plain error	No plain error: (a) State elected a predicate act and jury was unanimous on it; (b) defense theory was "all or nothing" credibility attack; prejudice not shown; Count I affirmed

Key Cases Cited

Blockburger v. United States, 284 U.S. 299 (1932) (test for whether two statutory offenses are the same for double‑jeopardy purposes: each must require proof of an element the other does not)
Whalen v. United States, 445 U.S. 684 (1980) (discusses compound/predicate‑offense problems and limits on cumulative punishment)
State v. Hazelton, 181 Vt. 118 (2006) (holding certain sexual‑assault subsections may be the same offense where consent is impossible as a matter of law)
State v. Breed, 198 Vt. 574 (2015) (double‑jeopardy between overlapping sexual‑assault provisions where charged conduct proved the same elements)
State v. Grega, 168 Vt. 363 (1998) (legislative intent governs double‑jeopardy; use Blockburger as tool)
State v. Deyo, 181 Vt. 89 (2006) (recognizes aggravated assault subsection for repeated nonconsensual acts as distinct policy concern)
State v. Neisner, 189 Vt. 160 (2010) (double‑jeopardy where all elements of one charged offense were contained in another as specifically charged)
State v. Bellanger, 206 Vt. 489 (2018) (when specific unanimity instruction is required; prejudice standard for plain‑error review)
Musacchio v. United States, 136 S. Ct. 709 (2016) (reviewing sufficiency of the evidence against the elements charged)