State v. DeyoState v. Deyo
¶ 1. REIBER, C.J. Defendant Anthony Deyo appeals his conviction of aggravated sexual assault. Defendant was tried and convicted by a jury of four counts: three counts of sexual assault on his child who was under the age of sixteen and one count of aggravated sexual assault based on repeated nonconsensual sexual acts as part of a common scheme or plan. Defendant appeals the aggravated sexual assault conviction, claiming that the trial court twice erred in instructing the jury on that count. We affirm.
¶ 2. On December 27, 2001, the State charged defendant with three criminal counts of sexual assault on T.D., a minor, for alleged violations of
¶ 3. On appeal, defendant raises two claims of error in the trial court‘s instructions to the jury: (1) in allowing the jury to use one of the incidents of the charged sexual conduct as a predicate for finding the element of “repeated” sexual acts for the aggravated charge; and (2) in instructing the jury that, because the complainant was under sixteen at the time of the alleged sexual acts, the acts were nonconsensual as a matter of law.
I.
¶ 4. Defendant first argues that the trial court committed plain error in violation of double jeopardy principles and legislative intent because its instructions allowed the jury to convict him of aggravated sexual assault based on “repeated” sexual acts by finding, in addition to any acts proved in connection with the three individual counts, that only one uncharged compounding act had occurred.
¶ 5. The trial court instructed the jury on the count of aggravated sexual assault, in pertinent parts, as follows:
These elements are as follows: that between September 11th, 2001 and December 31st, 2001, at Rockingham, the defendant, Anthony Deyo, one, engaged in repeated sexual acts with [T.D.]; two, at a time when his child, [T.D.], was under the age of 16 years; three, and that he intentionally engaged in the sexual acts; four, and that the sexual acts were part of a common scheme or plan. . . . As distinguished from counts one through three, count four does not require that you find that particular acts occurred at particular times. This is in recognition of the difficulty of determining in retrospect the exact time of occurrence of sexual acts. Rather, the State charges that in addition to the three distinct acts, which are the subject of counts one through three, Anthony Deyo engaged in other sexual acts with [T.D.].
Specifically, the State charges that on other occasions, the defendant placed his penis in [T.D‘s] vagina and also that contact occurred between Anthony Deyo‘s penis and [T.D.‘s] mouth, and that contact occurred between Anthony Deyo‘s mouth and [T.D.‘s] vulva. . . . If you find that one or more sexual acts occurred between Anthony Deyo and [T.D.], in addition to any acts proved in connection with counts one through three, the State will have met its burden of proof as to the element of repeated sexual acts. (Emphasis added.)
¶ 6. After delivering the above charge to the jury, but before sending the jury to deliberate, the court conferred with counsel about its instructions pursuant to
I need to make one more refinement, as to my instruction on count four, regarding aggravated child sexual assault. . . . [I]t is important that you be able to unanimously agree that the particular acts, beyond those charged in counts one through three did occur, and that you agree unanimously, what those acts were . . . you all agree on what they were and that they, in fact did occur. (Emphasis added.)
¶ 7. Defendant did not object to the jury instruction, and so we review for plain error.
¶ 8. Defendant argues that the trial court misstated the law when it instructed the jury that if it found “that one or more sexual acts occurred between Anthony Deyo and [T.D.], in addition to any acts proved in connection with counts one through three, the State will have met its burden of proof as to the element of repeated sexual acts,” thereby allowing the jury to use one of the single charges as a predicate for a separate aggravated sexual assault conviction based on “repeated” sexual acts.
¶ 9. We view jury instructions in their entirety in assessing for plain error, Carter, 2004 VT 21, ¶ 21, and we find error in a charge “only when the entire charge undermines confidence in the verdict, and only in extraordinary cases . . . .” State v. Carpenter, 170 Vt. 371, 374-75, 749 A.2d 1137, 1139 (2000). There is no plain error “if the charge as a whole is not misleading.” Forant, 168 Vt. at 220, 719 A.2d at 401. Instructions that misstate the law at one point but correctly state it multiple times elsewhere, without objection, do not usually give rise to plain error when reviewed as a whole. See, e.g., Carter, 2004 VT 21, ¶ 22 (no plain error where jury instruction twice omitted imminence element but explained the element multiple times elsewhere, including immediately after both omissions).
¶ 10. The court instructed the jury that they could find the element of repeated acts to have been proved if they found “one or more” acts in addition to the other counts; however, in the preceding paragraph of the jury charge, the court stated: “in addition to the three distinct acts, which are the subject of counts one through three, Anthony Deyo engaged in other sexual acts with [T.D.].” After the
II.
¶ 11. Next, defendant argues that the trial court committed plain error when, on the element that the repeated sexual acts be “nonconsensual,” it delivered the following instruction to the jury: “As with counts one through three, you must also find that [T.D.] was under the age of sixteen at the time of any sexual act, making such acts nonconsensual as a matter of law.” Trial counsel and the court had discussed the instruction at the charge conference and all agreed on the instruction without further objection, so our review is for plain error.
¶ 12. We are not persuaded by defendant‘s argument that the court “relieved the [S]tate of its burden to prove an essential element of [aggravated sexual assault] beyond a reasonable doubt and improperly directed the jury to convict Mr. Deyo without finding that the alleged repeated sexual acts were ‘nonconsensual.’ ” Instead, the trial court instructed the jury as a matter of law on the meaning of “nonconsensual” when the complainant is under sixteen years of age. The complainant‘s age was not disputed.
¶ 13. Defendant was convicted of aggravated sexual assault for subjecting the victim “to repeated nonconsensual sexual acts as part of the actor‘s common scheme and plan.”
¶ 14. Our paramount goal in interpreting a statute is to give effect to the Legislature‘s intent. State v. O‘Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996). “The definitive source of legislative intent is the statutory language, by which we are bound unless it is uncertain or unclear.” In re Bennington Sch., Inc., 2004 VT 6, ¶ 12, 176 Vt. 584, 845 A.2d 332. Where plain and unambiguous, we presume the Legislature intended the express meaning of that language and we enforce it according to its terms without resorting to statutory construction. Tarrant v. Dep‘t of Taxes, 169 Vt. 189, 197, 733 A.2d 733, 739 (1999).
¶ 15. The aggravated sexual assault statute requires that the repeated sexual acts be “nonconsensual.”
¶ 16. It is well settled that statutes in derogation of the common law are to be construed narrowly. See 3 Sutherland Stat Const § 61.01 (5th ed. 1992) (citing cases). We have held that, where statutes covering a subject are more narrow than the common law, the common law remains in force as to cases outside the scope of the statute. State v. Sylvester, 112 Vt. 202, 207, 22 A.2d 505, 508 (1941). Here, the statutes covering the subject of consent by minors to sexual activity with adults, while they do describe certain instances in which minors can give consent, do not do away with the common law that does not generally recognize consent by minors to sexual activity. Rather, by specifically enumerating those limited circumstances in which a minor can consent, the Legislature has only reinforced its adherence to the common law. Thus, the most reasonable construction of the statutes is that a minor is legally incapable of consenting to sexual intercourse with an adult except in the very narrow circumstances in which the Legislature has explicitly stated that a minor‘s consent will be effective. See In re M. and G., 132 Vt. 410, 416, 321 A.2d 19, 23 (1974) (“[T]he general principle is that the legislature may fix the time at which persons become competent to do any act or perform any duty.“).
¶ 17. If we recognize that under Vermont law a child has no general ability to consent to sexual acts with an adult, such acts must be “nonconsensual” as a matter of law except under the exceptional circumstances defined by the Legislature. Where a statute includes both children and adults in its potential class of complainants, as does aggravated sexual assault based on repeated nonconsensual acts, the legal principle that children cannot consent to sex with adults does not change. What is required to prove that the sexual contact was “nonconsensual” will therefore vary depending on the complainant‘s age. This accords with the legislative intent behind
¶ 18. The concurrence argues that the “most obvious” reason our construction of the statute is erroneous is that the penalty for aggravated sexual assault is an “obvious mismatch” with the underlying offense. Post ¶ 33. Aggravated sexual assault is punishable by a maximum term of life imprisonment or a $50,000 fine.
¶ 19. Further, we do not believe that the Legislature intended to impose an additional burden of proving an element of force-to prove aggravated sexual assault, rather than ordinary sexual assault-when the complainant is a child. To prove sexual assault on a minor, the State need produce only “a calendar and the person‘s birth certificate.” State v. Barlow, 160 Vt. 527, 530, 630 A.2d 1299, 1301 (1993). But sexual assault on a minor is limited, by definition, to a class of victims that includes only minors; aggravated sexual assault based on repeated nonconsensual acts applies to both adult and child complainants. What makes the sexual assault aggravated is simply the repeated nature of the conduct.
¶ 20. In this regard, the concurrence argues that our interpretation creates an unnecessary inconsistency between the aggravated sexual assault statute and the definition of “consent” in
¶ 21. The concurrence places great weight on a line of California cases which, the concurrence urges, establish the proposition that minors are legally capable of consent to sexual acts. Those cases, however, arose from a very different statutory scheme than ours, and are therefore not persuasive. The first case, whose dicta the concurrence reproduces at some length, is People v. Hillhouse, 1 Cal. Rptr. 3d 261 (Ct. App. 2003). In Hillhouse the adult defendant was charged with numerous violations of a penal code provision criminalizing sexual contact with persons incapable of giving legal consent because of developmental disability. Id. at 265. The defendant argued, and the trial court agreed, that the provision did not apply to his acts because the victim was a minor and was incapable of legal consent merely by reason of his minority, not “because of” his developmental disability. Id. at 265-66. Rejecting this nimble interpretation, the appellate court relied on 1970 statutory amendments which substantially altered the scheme governing sexual contact with minors in California. Id. at 268. The court noted that, prior to 1970, the California Penal Code, like our own statutes at the time of the offenses in this case,2 had punished sexual contact with minors without regard to consent. Id. The court further noted that pre-1970 California courts had, “consistent with the way our Penal Code treated such conduct prior to [the amendments],” generally held that “the concept that a minor female could not consent to sexual intercourse justified statutory treatment of the act in the same manner as other types of nonconsensual sexual intercourse.” Id. In 1970, however, the California Penal Code was amended, and the crime of having consensual sexual intercourse with a minor was removed from the general rape statute.
¶ 22. The Hillhouse court went on to cite People v. Tobias, 21 P.3d 758 (Cal. 2001), which the concurrence also cites, for the proposition that the California legislature, when it created a separate crime of unlawful sexual intercourse with a minor, “implicitly acknowledged that, in some cases at least, a minor may be capable of giving legal consent to sexual relations.” Hillhouse, 1 Cal. Rptr. 3d at 268 (citing Tobias, 21 P.3d at 762) . It bears stating explicitly, given the concurrence‘s reliance on Hillhouse, that the Vermont Legislature has not done so to the same extent.
¶ 23. The statutory scheme relevant to the instant case reflects a legislative determination that, apart from an exceedingly narrow exception for married people under age sixteen, minors cannot consent to sexual acts in Vermont. Even that exception does not squarely support the concurrence‘s position, given that minors under sixteen cannot independently consent to the marriage underlying their later ability to consent to sex with their adult spouse. See supra, n.2. Like the statutory scheme in California before the 1970 amendments, our statutes severely penalize sexual contact by adults with minors without regard to consent and do not contain the carefully drawn, age-specific exceptions now contained in the California Penal Code.4 Absent the relatively clear legislative direction that compelled the result in Hillhouse, we cannot agree with the concurrence‘s conclusion that the Vermont Legislature has wholly abrogated the common-law notion that minors cannot consent to sexual contact with adults. See Record v. Vt. State Highway Bd., 121 Vt. 230, 236-37, 154 A.2d 475, 480 (1959) (“[W]e are not to presume that the legislature intended to work any change in the common law beyond what the statute itself declares in either express terms, or by unmistakable implication.“) (citing State v. Hildreth, 82 Vt. 382, 384, 74 A. 71, 72 (1909)).5
¶ 24. Defendant also argues that
(1) Lack of consent may be shown without proof of resistance; (2) A person shall be deemed to have acted without the consent of the other person where the actor: (A) Knows that the other person is mentally incapable of understanding the nature of the sexual act or lewd and lascivious conduct; or (B) Knows that the other person is not physically capable of resisting, or declining consent to, the sexual act or lewd and lascivious conduct; or (C) Knows that the other person is unaware that a sexual act or lewd and lascivious conduct is being committed; or (D) Knows that the other person is mentally incapable of resisting, or declining consent to, the sexual act or lewd and lascivious conduct, due to mental illness or mental retardation as defined in
section 3601 of Title 14 .
¶ 25. Finally, defendant urges us to apply the rule of lenity on the grounds that even if it is arguable that the nonconsensual element does not apply when the complainant is under sixteen years of age, the lack of clear direction from the Legislature means that we should construe the statute in defendant‘s favor. State v. Sidway, 139 Vt. 480, 484, 431 A.2d 1237, 1239 (1981). We do not find this argument compelling. When statutory provisions unambiguously cover a defendant‘s conduct, the rule of lenity does not apply. See id. (holding that the hit-and-run statute applied to a defendant despite her claim that she lacked knowledge that she had caused damage). The legal principle that children cannot consent to sexual acts with adults has long been stable, and is not changed by the Legislature‘s use of the term “nonconsensual” in the modern aggravated sexual assault statute.
¶ 26. It was not error to instruct the jury that sexual acts between an adult and his minor child under age sixteen were nonconsensual as a matter of law. The fair administration of justice does not require that a jury be instructed that the consent defense is available to an adult charged with aggravated assault for repeatedly sexually assaulting his thirteen-year-old child.
Affirmed.
FOR THE COURT:
_______________________________________ Chief Justice
¶ 27. DOOLEY, J., concurring in part and dissenting in part. In these two cases, State v. Deyo, 2006 VT 120 and State v. Hazelton, 2006 VT 121, the majority has adopted a convoluted construction of the sexual assault statutes to avoid the obvious conclusion that they say what they mean and mean what they say. To reach this construction, we must also hold that the Legislature adopted the same crime twice, although it used entirely different language in doing so. The construction is inconsistent with basic canons of statutory construction as well as a presumption that the Legislature did not enact duplicative statutes. Thus, I dissent from Part III of the majority opinion in Hazelton, and, although I concur in the result, I disagree with the analysis in Part II of the majority opinion in Deyo.
¶ 28. The consideration of these cases and issuance of these opinions at the same time offers a unique opportunity to reach a consistent and coherent construction of the statutes as related to sexual assault on a minor. Unfortunately, the majority fails to reach the correct construction because it concludes, without any support in the statutory language or evidence of legislative intent, that the Legislature intended to adopt the common law doctrine that a minor cannot consent to a sexual act. Under the language of the statutes, that conclusion is wrong.
¶ 29. In approaching this dissent, I am reminded of the well-worn maxim that when a decision uses the word “clearly,” it is a certain signal that the opposite is true. Here, the majority states in Deyo that the “statutes in question unambiguously” apply to this case. 2006 VT 120, ¶ 15. The one thing that is clear about the issue before us is that the statutes do not unambiguously state the rule that the majority reaches. The wording chosen is a strong signal of this point.
¶ 30. The majority‘s point expressed over and over again in various statements is that because the common law stated that a minor,6 or a person under ten years of age, cannot consent to a sexual act, therefore a statute using the term “consent” or any of its derivatives must adopt the common law rule. If the majority actually adopted the common law rule, that position would be consistent with the statutory construction rule, cited and centrally relied upon by the majority, that the “common law is changed by statute only if the statute overturns the common law in clear and unambiguous language.” Langle v. Kurkul, 146 Vt. 513, 516, 510 A.2d 1301, 1303 (1986). But the rule the majority adopts is actually the following based on the current version of the relevant statute: A person under sixteen years of age cannot consent to a sexual act with another person unless: (1) the person is fifteen years of age and the other person is under nineteen years of age, or (2) the persons are married. This rule is so different from the common law rule that its relationship to the common law rule is barely recognizable. The enormous difference is a demonstration that the Legislature has covered “the entire subject matter” statutorily and the common law is no longer determinative. Id.
¶ 31. With that overview in mind, I will return to the beginning. There are three primary statutes involved in these cases; at the time of the offense they existed in the following versions. The first is
(a) A person who engages in a sexual act with another person and (1) Compels the other person to participate in a sexual act: (A) Without the consent of the other person; or (B) By threatening or coercing the other person; or (C) By placing the other person in fear that any person will suffer imminent bodily injury.
(3) The other person is under the age of 16, except where the persons are married to each other and the sexual act is consensual[.]
(a) A person commits the crime of aggravated sexual assault if the person commits sexual assault under any one of the following circumstances:
. . .
(9) The victim is subjected by the actor to repeated nonconsensual sexual acts as part of the same occurrence or the victim is subjected to repeated nonconsensual sexual acts as part of the actor‘s common scheme and plan.
¶ 32. The statutes are closely related, and must be construed in pari materia, a point on which the majority seems to agree. In developing a complete and consistent construction when applied to minor victims, it is appropriate to start with the aggravated sexual assault statute, the subject of Deyo. The majority construes
¶ 33. The majority responds to some reasons why its construction might be erroneous-I consider these below-but ignores the most obvious one. Aggravated sexual assault is a life imprisonment crime, essentially the maximum penalty under our law. This penalty applies to the most heinous of crimes, like murder. To hold that it applies to consensual sexual activity of a male of nineteen years or older and a female under fifteen years is wholly disproportionate to other offenses for which the penalty is reserved. I don‘t think it is an answer to the extreme nature of the punishment that sexual conduct must occur twice or that conduct that is consensual in fact is deemed nonconsensual by the law. While I recognize that the Legislature, and not this Court, determines the range of permissible punishment for an offense, the obvious mismatch between the punishment and the offense should give us pause in determining the scope of the crime.
¶ 34. On this point, the recent amendment to the sexual assault statutes is relevant. While narrowing the crime of statutory rape, the Legislature lowered its maximum penalty to twenty years in prison from thirty-five years.
¶ 35. The second major objection to the majority‘s conclusion is it creates unnecessary inconsistencies in statutes that must be read in pari materia. The word “consent,” or its derivatives, is used three times in the statutes that define the crime of sexual assault and aggravated sexual assault, the statutes we are considering. It is also defined in
¶ 36. The first inconsistency is with the definition of “consent” in
¶ 37. The second, and most important, inconsistency is that the one usage from which the meaning of consent can be determined on the exact question before us is contrary to the majority‘s holding. Thus, the statutory rape provision,
¶ 38. The current statute carries forward the usage from the former rape statutes,
¶ 39. Again, the recent amendment to the statute undercuts the majority‘s position. The Legislature narrowed the offense of statutory rape so that consensual sexual activity between a child at least fifteen years of age and another person of eighteen years of age or less is not statutory rape.
¶ 40. Despite the statutory language, virtually all of the majority‘s rationale is based on cases that apply and explain the statutory rape provision, at least as it existed at some time in the past. The primary precedent is State v. Thompson, 150 Vt. 640, 644, 556 A.2d 95, 98 (1989), stating that “consent by a minor is not legally possible.” The language is a description of why consent is not generally a defense to statutory rape. It is not a quote from or construction of the statutory rape statute, or any other statute. No Vermont statute has ever stated that consent by a minor to a sexual act is legally impossible. Indeed, the statutory rape statutes have consistently made clear that consent of the minor victim is possible under specific circumstances and can be a full defense, making the statement in Thompson wrong if read as a description of those statutes. The majority has confused the rationale for a statute with its terms and acted as if the court-derived rationale is statutory language. Thompson and the other similar cases are not “decisions interpreting the very words we are called on to construe in this case,” as the majority claims. Deyo, 2006 VT 120, ¶ 23 n.5. They do not provide support for the majority‘s construction of consent as it is used in
¶ 41. We are not the first court to face the need to make our rhetoric on statutory rape consistent with the statutory language. This question is discussed in detail in People v. Hillhouse, 1 Cal. Rptr. 3d 261 (Ct. App. 2003), where defendant argued that the statutory crime covering victims incapable of giving consent to sexual acts because of a disability did not apply to a minor victim because the victim was otherwise “incapable of giving legal consent to sexual acts.” Id. at 263. In rejecting defendant‘s argument, the court discussed the dicta in court decisions that minors cannot consent to sexual acts:
In any event, even if we were inclined to do so, we perceive no need to interpret the language of these provisions restrictively, because in our view their plain language creates no impermissible overlap or conflict with the statutory provisions governing sexual contact with minors. Both the trial court and [defendant] have focused on the concept of “legal consent,” reasoning that a minor‘s inability to give legal consent to sexual conduct due to age means that the Legislature could not have meant to include them among those who are unable to give legal consent due to mental disability. However, although common parlance (even that indulged in by courts) tends to suggest that minors cannot consent to sexual contact, none of the statutory provisions which specifically govern that contact says such thing. To the contrary, the concept of consent, whether legal or actual, is actually irrelevant to the determination of whether those statues have been violated.
The statutes . . . make no reference to a minor‘s ability or inability to consent to sexual contact. They merely implement a public policy making the described acts criminal without regard to such consent.
Id. at 267-68; see also Donaldson v. Dep‘t of Real Estate, 36 Cal. Rptr. 3d 577, 588 (Ct. App. 2005) (the phrase “age of legal consent” has “passed into lay usage and been incorporated into folk law“). Hillhouse exactly describes the situation before us in this case.11
¶ 42. The third inconsistency is with the provisions of
¶ 43. In part, the section deals with the exact issue before us-the capacity of the victim to consent. Thus,
¶ 44. The third major objection to the majority‘s construction of “consent” is to the consequences of this construction as reached in Hazelton. The holding of Hazelton is that with respect to a victim under sixteen years of age,
¶ 45. I believe that we have rejected the majority‘s analysis in the early case of State v. Wheat, 63 Vt. 673, 22 A. 720 (1891). In Wheat, the prosecution charged defendant with assault with intent to commit rape by assaulting the victim to carnally know and ravish her against her will. At trial, the prosecution met its proof burden by showing that the victim was under fourteen years of age, then the cut-off age for statutory rape. This Court reversed, holding that the prosecution had to prove that defendant acted without the consent of the victim, irrespective of the victim‘s age. We held:
The offense of having carnal knowledge of a female person against her will, is distinct from that of having carnal knowledge of one under the age of fourteen with her consent, although both offenses are rape. In the first offense, the question of age is not involved. In the second offence, it is the age of the victim which eliminates the element of consent.
Id. at 675, 22 A. at 720. Under the majority‘s analysis in Hazelton, the question of age is centrally “involved” to the point that it is determinative.
¶ 46. The majority‘s reading of Wheat is that the result only occurred because the State charged defendant with rape, not statutory rape, and it was unfair for the prosecution to obtain a conviction without proving lack of consent. That reading is possible only if there is such an offense as nonconsensual rape of a young child, an offense the majority finds is impossible. Thus, under the majority‘s view of Wheat, the prosecution was required to prove the elements of a non-crime.
¶ 47. More important, the situation in Wheat as described by the majority is exactly the situation present in Hazelton. Over and over again-in opening argument, in closing argument, and in response to defendant‘s motion to dismiss one of the offenses-the prosecution stated that it had charged defendant with nonconsensual rape, as well as statutory rape, and assumed the burden to prove lack of consent in fact. If the prosecution could assume that burden in Wheat, it could do so here, and the nonconsensual rape charge contained an element-lack of consent in fact-not present in the statutory rape charge. Whether generally or in the context of the actual Hazelton charges, Wheat controls the disposition of Hazelton.
¶ 48. We should reach the same result if we look at the duplicative offense question the majority has decided. As the majority correctly points out, according to the analysis in Blockburger v. United States, 284 U.S. 299 (1932), two offenses are considered the same offense for double jeopardy purposes unless each statutory provision “requires [additional] proof of a fact that the other does not.” State v. Grega, 168 Vt. 363, 382, 721 A.2d 445, 458 (1998) (citing Blockburger); see Hazelton, 2006 VT 121, ¶ 24. For our purposes, the most important aspect of the Blockburger analysis is that where one offense requires proof of a fact that the other does not, “the Legislature is presumed to have authorized cumulative punishment under the two statutory subsections because each subsection is presumed to define a distinct crime.” State v. Ritter, 167 Vt. 632, 633, 714 A.2d 625, 625 (1998) (mem.) (emphasis added). It is this presumption of constitutionality that guides our double jeopardy analysis.
¶ 49. The majority claims that although “the differences between the two crimes may be apparent, they are not real.” Hazelton, 2006 VT 121, ¶ 26. In reaching this holding, the majority says that the “Legislature is free to punish the same conduct under two statutes, but its intent to do so must be clear.” Id. ¶ 39. It is the corollary of this rule that is the most significant here, that each statute “is presumed to define a distinct crime.” Ritter, 167 Vt. at 633, 714 A.2d at 625. If we apply that presumption, we must hold that the nonconsensual rape section,
¶ 50. The real problem with the majority‘s analysis is that the corollary, as stated in Ritter, is ignored. Despite the fact that Hazelton and Deyo are issued on the same day, the statutory construction problem is not analyzed with an understanding that the consequence of the statutory construction chosen in Deyo is that the Court must hold that the Legislature has adopted the same crime twice, although in entirely different wording. As Ritter says, the presumption is to the contrary, but that presumption never enters the analysis to suggest a different statutory interpretation-the interpretation in this dissent. As I said at the beginning, the advantage of considering both cases together is that this Court can see the full consequence of each ruling. The full consequence is ignored by the majority‘s analysis, and the Blockburger presumption as explained in Ritter is also ignored.
¶ 51. The obvious plain meaning of the statutory scheme is that the two subsections define separate crimes because consent in
¶ 52. This construction is consistent with the likely intent of the Legislature. Rather than intending to criminalize the exact same conduct twice, the Legislature drew a distinction between a circumstance where a minor consents to sexual activity without coercion and a situation where a minor is coerced into having sex. The latter is a separate and additional crime because of the presence of the coercion. This interpretation is supported by the presence of the word “compels” in
¶ 53. Finally, I believe the weight of the decisions from other states is consistent with this dissent and not the majority analysis. I say this recognizing that using persuasive authority on statutory construction questions must be done carefully because of differences in statutory language and schemes. In addition to Hillhouse, decisions that are inconsistent with the majority opinion, particularly in Hazelton, include People v. Tobias, 21 P.3d 758, 758 (Cal. 2001)13 (the antecedent for Hillhouse); Donaldson, 36 Cal. Rptr. 3d at 584-89; State v. Cahill, 845 P.2d 624, 627-28 (Kan. 1993); Commonwealth v. Duffy, 832 A.2d 1132, 1138-41 (Pa. Super. 2003); and May v. State, 919 S.W.2d 422, 423-24 (Tex. Crim. App. 1996).
¶ 54. The most persuasive opinion, in a case on point with Hazelton, actually reaches the same result as the majority, but demonstrates what elements are necessary for the result. In State v. Stamper, 106 P.3d 172 (Or. Ct. App. 2005), the court found that the elements of sexual abuse on a victim who did not consent were met by the age of the victim. Id. at 173. In reaching this conclusion, it recognized that requiring actual consent was “consistent with the ordinary meaning of the relevant terms” of the statute and “consistent with other statutes that suggest that the legislature understands that there is a difference between an actual lack of consent and legal incapacity to consent for any of several different reasons, one of which is the age of the victim.” Id. at 177. Nevertheless, the court reached the opposite conclusion for two major reasons. First, Oregon has a statute that provides “[a] person is considered incapable of consenting to a sexual act if the person is . . . [u]nder 18 years of age.” Id. at 175, 179-80 (quoting
¶ 55. The elements determining legislative intent in Stamper are exactly what the majority does not have here. Stripped of these elements, the plain language of the statutes and every aid to statutory construction is against the construction in Deyo and double jeopardy holding in Hazelton.
¶ 56. Finally, I return to the central rationale of the majority-that its result is compelled by the common law. I agree that central to a resolution of this case is an understanding of how the current sexual assault statutes relate to the common law from which they are derived. I don‘t agree, however, that implicitly they have imported the common law rule on which the majority relies.
¶ 57. We are in this case engaged in the construction of statutes, and our paramount aim must be to determine the intent of the Legislature. All of the statutory construction rules that the majority cites are aids to determining legislative intent and must be viewed in this light. The ultimate question is whether the Legislature intended to say that consent was impossible for the victim in Deyo and that
¶ 58. Like all statutory construction aids, the rules on using the common law reflect a balance between recognizing the common law where the Legislature intended to continue it and recognizing that the Legislature has the duty to define a different course from the common law where it thinks it appropriate. Thus, the rules cited by the majority create presumptions that can be overcome by evidence of what the Legislature actually did and are tempered by rules that counsel against excessive importation of the common law where there is no indication that the Legislature intended it. Thus, we cannot “extend common-law principles to extinguish express statutory language.” Hitchcock Clinic, Inc. v. Mackie, 160 Vt. 610, 611, 648 A.2d 817, 819 (1993) (mem.). We can use the common law to interpret undefined words in a statute, State v. Oliver, 151 Vt. 626, 627, 563 A.2d 1002, 1003 (1989), but not where the Legislature defines the words it uses at variance with the common law. Most important for this case, a statute changes the common law if it “attempts to cover the entire subject matter.” Langle, 146 Vt. at 516, 510 A.2d at 1303.
¶ 59. If ever there were a situation where the Legislature has sought to cover the entire subject matter of an issue, it is here. At least since the comprehensive reform of the sexual assault statutes in 1977, see 1977, No. 51, the Legislature has intended to cover the entire subject of criminal sexual assault, including statutory rape. By a definition of consent in
¶ 60. This is not a situation where the Legislature has abandoned the common law, and we must insist that it directly state so. Instead, the Legislature embodied the principles of the common law into a comprehensive definition of criminal liability for sexual assault. As I emphasized in the fourth paragraph of this dissent, the majority does not propose to enforce a common law rule; instead it is enforcing a rule it finds in legislative wording. Thus, it is using the common law as a justification for imposing a different statutory construction than that derived from the plain meaning of the statutory sections, the specific definitions the Legislature enacted, and the ordinary rules of statutory construction.
¶ 61. Finally on this point, even if the aids to statutory construction suggested that direction, I would not hold, as the majority has in Hazelton, that the Legislature intentionally voted to criminalize the same conduct twice. This consequence of the majority‘s statutory construction is strong evidence that the statutory construction is inconsistent with legislative intent.
¶ 62. For these reasons, I disagree with the statutory construction imposed by the majority. Thus, I vote as follows in the two cases before us. In Deyo, the trial court charged that the sexual acts were nonconsensual as a matter of law if the victim was under sixteen years of age. Contrary to the majority holding, I conclude that this instruction was error. Defendant failed, however, to object to the charge, and we can reverse only for plain error. See State v. Percy, 158 Vt. 410, 418, 612 A.2d 1119, 1125 (1992). I agree that there is no plain error here because the sexual acts could not be considered consensual between father and daughter essentially for the reasons stated by the majority in Deyo. See Deyo, 2006 VT 120, ¶ 20. The Legislature appears to have adopted this view by defining as a sexual assault a parent‘s sexual act with his or her child if the child is under eighteen years of age.
¶ 63. In Hazelton, the majority holds that defendant cannot be convicted of both sexual assault under
¶ 64. I also note that even if I agreed with the majority in Hazelton on the meaning of the word “consent” in
¶ 65. We do not have to give guidance on this issue in light of the remand. The State has not appealed the ruling favorable to defendant, and it has become the law of the case, right or wrong.
¶ 66. Second, as I note above, even if Wheat holds what the majority says it does, the prosecution in this case affirmatively took on the responsibility to prove lack of consent in fact. Because the prosecution took on that responsibility, the offense it chose to prove under
¶ 67. The third reason is the most important. The majority‘s construction of
¶ 68. In support of its construction, the majority argues that the statute simply defines three different ways that the sexual act can be compelled, State v. Nash, 144 Vt. 427, 433, 479 A.2d 757, 760 (1984), and therefore compulsion is not an element of the offense. That argument makes sense only if the methods are examples of compulsion, and, as noted above, that is a strong argument why the majority‘s construction of “without consent” is wrong. If I have to accept that construction, however, it has a corollary: the fact that the age of the victim cannot remotely be seen as an example of compulsion undercuts the majority‘s holding that compulsion is not a separate element of the offense. I would hold that each offense has a separate element and conviction of both is permissible.
__________________________________ Associate Justice