State v. Ryan R. Hovey, 263 A.3d 760

In August 2018 Hovey, the complainant, and Hovey’s coworker drove together; complainant was highly intoxicated and became unconscious during the drive.
The men stopped in a secluded area; the coworker and Hovey had sex with the unconscious complainant (coworker in the backseat; Hovey on the ground after dragging her from the car).
Hovey was charged with two counts of aggravated sexual assault under 13 V.S.A. § 3253(a)(2) (assault joined/assisted by another) and § 3253(a)(9) (repeated nonconsensual acts as part of a common scheme).
A jury convicted Hovey on both counts; the trial court sentenced him to two consecutive ten-year terms and lifetime probation, including condition 41 requiring residence/work approval by his probation officer.
On appeal Hovey argued the dual convictions violated double jeopardy because, as charged, both required proof of the same fact (another person joined in the assault); he also challenged condition 41 as an improper delegation.
The Vermont Supreme Court held the two aggravated-sexual-assault convictions violated double jeopardy as charged (a(2) was a lesser-included of a(9) here) and remanded for the State to elect which conviction stands; it also remanded condition 41 for the trial court to justify, revise, or remove it because no findings supported the delegation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether convictions under § 3253(a)(2) and § 3253(a)(9) for the same incident violate double jeopardy	State: Blockburger presumption applies; the subsections have different statutory elements (one requires another person, the other requires repeated acts) so separate convictions are permissible	Hovey: As charged and argued at trial, both counts depended on proof that another person joined in sexual assaults (the coworker), making (a)(2) a lesser-included offense of (a)(9)	Court: Double jeopardy violated as charged; remand for State to elect which aggravated-sexual-assault conviction will stand
Whether probation condition requiring residence/work approval by probation officer is permissible	State: conceded condition overbroad without court findings	Hovey: Condition is an improper delegation of judicial power to probation officer and unduly broad	Court: Plain error; condition imposed without required findings; remand to justify, revise, or remove condition

Blockburger v. United States, 284 U.S. 299 (articulates the test whether each offense requires proof of a fact the other does not)
Brown v. Ohio, 432 U.S. 161 (lesser-included-offense principle and double jeopardy)
State v. Neisner, 16 A.3d 597 (Vt.) (as-charged application of Blockburger; elements may merge depending on charging theory)
State v. Ritter, 714 A.2d 624 (Vt.) (aggravating-factor statutes do not authorize multiple convictions for a unitary act)
State v. Moses, 618 A.2d 478 (Vt.) (probation condition delegating residence decision to probation officer improper)
State v. Freeman, 70 A.3d 1008 (Vt.) (followed Moses; required findings when authorizing residence/work conditions tied to probation officer approval)
State v. Fonseca-Cintron, 238 A.3d 594 (Vt.) (discusses legislative intent and uses Blockburger as a statutory-construction tool)