State v. Shawn Bellanger, 183 A.3d 550

Background

Defendant Shawn Bellanger was convicted by a jury of aggravated sexual assault of a child (13 V.S.A. § 3253a(a)(8)) and lewd or lascivious conduct with a child (13 V.S.A. § 2602) based principally on the testimony of an eleven‑year‑old victim, D.H., describing multiple distinct sexual contacts when she was 9–10.
The State originally charged five counts but proceeded at trial on three; defendant was acquitted of voyeurism and sentenced to an aggregate term of 27 years to life.
D.H. testified to multiple separate incidents (penis‑to‑mouth, mouth‑to‑vulva, finger‑to‑vulva, and penile penetration) at different locations in the home; one act (vaginal penetration) was first disclosed at trial.
At trial the court instructed the jury that they must agree that more than one sexual act occurred for the § 3253a(a)(8) charge but did not give a specific unanimity instruction requiring jurors to agree on which particular acts formed the basis for conviction.
The court also instructed that nonconsent could be presumed as a matter of law because the victim was under sixteen, and required jurors to find the parties were not married; defendant challenged the unanimity instruction omission, the nonconsent instruction, sufficiency of evidence on nonmarriage, and several aspects of the prosecutor’s closing argument.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court’s unanimity instruction was inadequate for § 3253a(a)(8) (multiple acts)	State: instruction that jurors must agree at least two acts occurred was sufficient; no election required absent materially distinguishable acts	Bellanger: omission of specific unanimity instruction risked nonunanimous verdict on which acts supported conviction	Court: omission was error under Nicholas because acts were materially distinguishable, but error was not plain reversible error given defense was a blanket credibility denial and jurors likely believed D.H.
Whether the nonconsent instruction (presuming nonconsent because victim <16) relieved State of element	State: presumption reflects longstanding Vermont law that minors under 16 cannot consent; instruction proper	Bellanger: instruction eliminated an essential element and could render § 3253a indistinguishable from lesser offense, raising Eighth Amendment concerns	Court: instruction was correct under Vermont precedent (Deyo/Hazelton); presumption limited by statutory marriage/age exceptions, so no Eighth Amendment violation
Whether State proved parties were not married (element relevant if nonconsent presumption applied)	State: evidence of living arrangements and breakup supported nonmarriage; instruction to find nonmarriage was proper corollary to nonconsent presumption	Bellanger: insufficient evidence to prove nonmarriage	Court: circumstantial evidence was sufficient to support finding of nonmarriage; requirement to prove nonmarriage flows from applying nonconsent presumption
Whether prosecutor’s closing argument included reversible misconduct (golden rule, personal opinion, voir dire references, motive comments)	State: arguments were within bounds—credibility argument, tied to evidence, isolated remarks; any improprieties harmless	Bellanger: prosecutor improperly asked jurors to imagine being the child, injected personal opinion on credibility, and strayed beyond evidence	Court: statements did not amount to reversible misconduct; some comments technically beyond evidence were harmless or not plain error given limited, isolated nature and strong evidentiary basis for conviction

Key Cases Cited

State v. Levitt, 148 A.3d 204 (discussing review of jury instructions as a whole)
State v. Nicholas, 151 A.3d 799 (explaining election/unanimity rules when multiple distinct acts are charged)
State v. Gilman, 608 A.2d 660 (requiring State to specify act or secure jury unanimity when multiple acts presented)
State v. Deyo, 915 A.2d 249 (holding nonconsent may be presumed as matter of law for victims under 16 and explaining interplay with statutory exceptions)
Ewing v. California, 538 U.S. 11 (principles of Eighth Amendment proportionality and deference to legislative sentencing choices)
Harmelin v. Michigan, 501 U.S. 957 (Eighth Amendment proportionality analysis principles)