State v. HazeltonState v. Hazelton
¶ 1. BURGESS, J. Defendant appeals from his conviction and sentence following a jury trial on two counts of sexual assault. He claims on appeal: (1) that the court improperly allowed the State to introduce hearsay evidence against him; (2) that the court erred in allowing him to be prosecuted for two crimes arising out of a single act; and (3) that his concurrent sentences of eighteen to twenty years are illegal because, after allowing for good time off the maximum, the minimum term could match or exceed the maximum term. We reverse and remand on defendant‘s first point, respond to his second issue as germane to retrial, and do not reach his third issue.
¶ 2. Defendant was charged with sexually assaulting S.L., the niece of his girlfriend, while babysitting S.L. and her younger sister. S.L. was ten years old at the time of the alleged assault. S.L. testified that she had been playing outside with some other children and that when she went into the house to use the bathroom defendant sexually assaulted her by use of force. There was no other witness or evidence to corroborate the alleged assault. Defendant testified and denied the allegations.
I.
¶ 3. Defendant‘s first claim of error is that the trial court allowed the State to bolster S.L.‘s credibility with hearsay after defense counsel impeached her testimony at trial with a prior inconsistent statement made in an earlier deposition. S.L.‘s statements at issue-prior descriptions of the assault to the investigating police officer and to her grandmother-were proffered by the State on the theory that prior consistent statements would allow the prosecution “to argue that there were no other inconsistencies.” The State cited State v. Church, 167 Vt. 604, 708 A. 2d 1341 (1998) (mem.) as authority for admission of prior consistent statements to support the credibility of a witness impeached by a prior inconsistent statement.
¶ 4. Defendant argues that the trial court improperly admitted the testimony in reliance on our decision in Church, which allowed admission of prior consistent statements of a witness, not as substantive non-hearsay evidence under
¶ 5. At trial, S.L. testified that while playing kickball, she entered defendant‘s home to use the bathroom when he grabbed her by the arm, brought her to his bedroom, undressed her, forced her face-down onto the bed, and held her down with one hand on her neck and the other under her stomach propping her up. She testified that she felt something go into her “baby hole,” that it hurt, and that defendant made moaning noises. She said that after the assault she got her clothes, ran into the bathroom, and noticed she was bleeding from between her legs and that there was “white mushy stuff“on her. She stated that she cleaned herself with toilet paper and wrapped toilet paper around her underwear to stop the blood from leaking through. She also testified that after the assault, and before she went into the bathroom, defendant told her not to tell anyone and that if she did he would “hurt people [she] cared for.” S.L. testified that afterwards she had nightmares about defendant, continued to spot blood for a few days (when she had not yet begun menstruating), and told her grandmother about the incident around Easter, some six months later.
¶ 6. On cross-examination, defense counsel sought to impeach S.L. by highlighting inconsistencies between her trial testimony and her earlier deposition testimony. Defense counsel asked S.L. whether any blood got onto her clothing, and S.L. responded that some blood got onto her underwear and she threw them away. Defense counsel then presented S.L. with her deposition testimony, where counsel asked whether she had bled onto her underwear, and S.L. answered: “No, not that I could recall.”
¶ 7. After S.L. testified, the state presented testimony from Dr. Scattergood, who examined S.L. after she disclosed the alleged assault to her grandmother. The doctor related that during a sexual assault examination, S.L. reported that defendant “put his thing inside her, she had some spotting for two to three days, [and] afterward she was sore.” Defendant raised no objection to this portion of the doctor‘s testimony.
¶ 8. After the doctor‘s testimony, the State proffered the investigating officer who took S.L.‘s report of the assault, and S.L.‘s grandmother who was the first person S.L. told about the assault, to testify about what complainant previously told them had happened at defendant‘s house. Defendant objected to the witnesses repeating S.L.‘s prior statements as both inadmissible hearsay and improper rehabilitation. The State argued that the prior consistent statements were not offered for the truth of the matter asserted, but to support S.L.‘s credibility in response to defendant‘s effort to impeach the witness with her prior inconsistent statements, and cited Church in support.
¶ 9. Defendant argued that repetition by others of S.L.‘s versions of the assault would not rebut the inconsistency drawn out by the defense, and the State made no proffer that either witness‘s testimony would address the particular inconsistency raised by the defense: that S.L. testified at trial that there was blood on her underwear, but testified at an earlier deposition that she recalled no such blood. Agreeing that Church appeared to follow a rationale of admitting prior consistent statements for the jury “to understand that these inconsistencies are minor with how many consistencies there have been in the past,” the trial court allowed the prior consistent statements for that purpose. This ruling was incorrect, and so we revisit Church to clarify the use of prior consistent statements following attack on a witness‘s credibility by prior inconsistent statements. We do not here attempt to exhaust the circumstances in which the trial courts may find the admission of consistent statements relevant to rehabilitate a witness‘s credibility after impeachment. As each case may present unique circumstances, the application is best left to the sound discretion of the trial courts. Nevertheless, it must be said that Church does not stand for the proposition that, whenever an inconsistency is raised as to one detail of a story, the opposing party may introduce prior out-of-court statements consistent with other aspects of a witness‘s testimony, without any rebuttal force to the contradiction or to the source of the impeachment.
¶ 10. In Church, a child-sexual-assault case where evidence of recantation was introduced as a prior inconsistent statement to impeach the child‘s testimony, the defendant argued that it was error to allow a witness to testify to the child‘s prior consistent statements outside of the limited circumstances outlined in
¶ 11. That the evidence is not offered under
¶ 12. The requirement that prior consistent statements used to rehabilitate a witness after impeachment by inconsistent statements must particularly dispel, explain, modify, or clarify the inconsistency is not a new concept in Vermont. See, e.g., Ronan v. Stannard, 100 Vt. 436, 438, 138 A. 729, 729 (1927) (holding that where “cross-examination was obviously an attempt to discredit the witness by showing that he had testified differently on a previous occasion. . . . it was proper on re-examination to show such of his former testimony as tended to modify or qualify the effect of such parts thereof as were elicited on cross-examination“); State v. Turley, 87 Vt. 163, 174, 88 A. 562, 567 (1913) (observing the widespread repudiation of rules allowing a witness to be sustained by her corroborative prior statements after being discredited by her contradictory accounts of a transaction, but recognizing exceptions such as where the evidence is offered to dispel the inference that the witness ever made the contradictory statements).
¶ 13. While we recognize that Church might, at first glance, convey a broad application of the rehabilitative use of prior consistent statements, the predicate remains that the prior statement must have some “rebutting force” other than that the witness merely said something earlier that was the same as that part of her trial testimony that was not impeached. Church, 167 Vt. at 605, 708 A.2d at 1342. The record here reveals that the trial court believed Church was broad enough to authorize admission of prior consistent statements to bolster the testimony of a witness impeached by prior inconsistent statements, without having to specifically counter the inconsistency, and understood such rehabilitation to be particularly appropriate in the instant case where, like Church, the impeached witness was a child. In Church, the child‘s prior statement, consistent with her testimony that defendant assaulted her, was allowed after a witness testified that the child recanted in an earlier conversation. Id. at 605-06, 708 A.2d at 1342. The rehabilitative evidence in Church, showing that an earlier allegation of assault was consistent with the child‘s trial testimony, was no more broad than the measure of impeachment-an alleged recantation of the assault complaint. The rehabilitation in Church focused on the specific topic of the impeachment, while it also tended to rebut the credibility of the witness-declarant. In contrast, the source of the prior impeaching statement in the instant case was S.L.‘s own deposition testimony about having no memory of blood on her underwear, and only a small part of the officer‘s testimony confirmed that S.L. spoke of blood prior to the deposition, while her grandmother‘s testimony did not mention blood at all.
¶ 14. In light of the evolution of case law disfavoring admission of prior statements solely for the purpose of repeating the same general story, the trial court incorrectly read Church to allow the State to attempt to overshadow a witness‘s inconsistency with a consistent repetition of other details of the assault-as opposed to attempting to contradict, explain, modify, qualify, dispel or in any way address or rebut the particular inconsistency drawn from a witness. Cf. United States v. Simonelli, 237 F.3d 19, 26 (1st Cir. 2001) (finding little basis for admissibility in rehabilitative questioning by the government that went beyond the specific inconsistencies where the purpose “was not to show there was really no inconsistency but to show that [the witness] did not lie about everything and that most of what else he had to say at trial was consistent with what he had said earlier to the grand jury“).
II.
¶ 15. We next address whether the trial court‘s erroneous evidentiary rulings require reversal under harmless-error analysis. “When the error involves improper admission of evidence, the error cannot be harmless if there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” State v. Oscarson, 2004 VT 4, ¶ 30, 176 Vt. 176, 845 A.2d 337 (internal quotations omitted); see also State v. Catsam, 148 Vt. 366, 371, 534 A.2d 184, 188 (1987) (“[H]armless error analysis requires the reviewing court to inquire if, absent the alleged error, it is clear beyond a reasonable doubt that the jury would have returned a verdict regardless of the error.” (internal quotations omitted)). It is the State‘s burden to establish beyond reasonable doubt that the jury would have returned the same verdict if the error had not occurred. State v. Goodrich, 151 Vt. 367, 377-78, 564 A.2d 1346, 1352 (1989). “The burden is a difficult one.” Id. at 377, 564 A.2d at 1352. Because we cannot conclude the court‘s errors were harmless beyond a reasonable doubt, we reverse and remand for a new trial.
¶ 16. To calculate whether the error was harmful, this court considers the following factors: “the importance of the witness’ testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross examination otherwise permitted, and, of course, the overall strength of the prosecution‘s case.” State v. Lynds, 158 Vt. 37, 42, 605 A.2d 501, 503 (1991) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). The State argues that any error in admitting the grandmother‘s and officer‘s testimony was harmless beyond a reasonable doubt because defendant did not object to the same evidence when it came in through the examining physician‘s testimony, so the jury would have heard it anyway, and the evidence did not involve the introduction of additional evidence, only repetition of facts already known to the jury.
¶ 17. First, we review the testimony of the law enforcement officer. The officer repeated many of the same facts S.L. stated in her direct testimony, albeit in briefer fashion-that she went inside to use the bathroom during a kickball game, defendant immediately grabbed her, brought her to his bedroom, removed her clothes, threw her onto the bed, held her down with one hand on her neck and the other under her pelvis, raped her, and told her he would hurt people she loved if she told anyone.
¶ 18. The grandmother‘s testimony was more summary and brief than the officer‘s. She stated that S.L. told her “they had been out playing, [S.L., her sister, and defendant‘s son], and [S.L.] went in to go to the bathroom, and [defendant] grabbed her and threw her down on the bed face first and held her down by the neck, pulled down her clothes and raped her.” Like the testimony of the officer, none of the information offered any embellishment or more detail than S.L.‘s own testimony on direct and cross examination.
¶ 19. We agree with the State that the evidence was cumulative in so far as no new facts about the alleged assault were offered by the officer or the grandmother. The record reflects that S.L. was the most articulate witness on the details of the alleged assault, and the officer and grandmother added no substance or new information to the child‘s testimony. The doctor previously testified, without objection, to S.L.‘s most damaging prior statement-that defendant “put his thing inside her.” Prior consistent statements are inherently cumulative, so whether the evidence is cumulative is not the end of the inquiry under the Van Arsdall factors. The factors most relevant to harmless-error analysis in this case are the importance of the evidence to the State‘s case and the overall strength of the State‘s case. The importance of the testimony to the prosecution was not in the particular factual information presented, but the effect of the additional testimony in improperly bolstering S.L.‘s credibility.
¶ 20. If believed, the testimony of S.L., alone, was enough to convict defendant. The express purpose of the grandmother‘s and the officer‘s testimony to the prosecution‘s case was to bolster the believability of S.L.‘s version over defendant‘s version of events. The State argued extensively to the trial judge that Church allowed it to show how consistent S.L. had been at other points to balance the particular inconsistencies raised in cross-examination. Nothing in the record reflects that the child‘s version was inherently credible, or defendant‘s denial necessarily implausible. With credibility being the key ingredient in this swearing contest between complainant and defendant, and absent any independently corroborating evidence of the assault, we cannot avoid a conclusion that it was reasonably possible, as intended, that the erroneously admitted testimony influenced the jury‘s decision to believe S.L. Moreover, the court specifically instructed the jury that, in determining the credibility or believability of each witness, it could consider “any prior statements . . . that were consistent or inconsistent with the witness‘s trial testimony, the internal consistency or inconsistency of a witness‘s testimony and its support or contradiction by any other evidence in the case.”1 The jury could presume from the court‘s instructions that it was proper to consider the entire repeated recitation of the story as relayed by the officer and the grandmother, and which comprised the great majority of their testimony, as enhancing S.L.‘s credibility.
¶ 21. Finally, we address the State‘s argument that the jury already heard S.L.‘s prior statements from the examining doctor that “[S.L.] said . . . he put his thing inside her.” We are not persuaded that the doctor‘s statements negate the prejudicial effect of the officer‘s and grandmother‘s testimony, or that the doctor‘s testimony, as the State argues, was merely the “same” evidence. The doctor‘s testimony was arguably more impressive than the testimony under objection. We cannot, however, conclude that the doctor‘s statement was so independently convincing as to foreclose the possibility, beyond a reasonable doubt, that the jury‘s verdict was influenced by the improperly admitted hearsay of the officer and grandmother. There would appear to be no purpose, other than improper credibility bolstering, for the jury to consider the prior-consistent-statement testimony of the officer and the grandmother. Under these particular circumstances, where the trial court erroneously allowed two witnesses to recite S.L.‘s step-by-step version of the events for the express purposes of bolstering her credibility after defendant‘s attempts to impeach her in a swearing contest, we cannot conclude that the multiple errors were harmless beyond a reasonable doubt.
¶ 22. Given our reversal of the conviction and sentence on defendant‘s first issue, we need not reach defendant‘s third claim of error that failure to consider speculative good-time reductions to a maximum sentence can result in an illegally long minimum sentence. We do, however, address defendant‘s remaining legal argument because it is likely to arise in a new trial. See State v. Morale, 174 Vt. 213, 215, 811 A.2d 185, 187 (2002) (noting that the Court may reach issues likely to recur on remand in the interest of judicial economy).
III.
¶ 23. Defendant next contends that the court erred in allowing him to be convicted and sentenced on the two charges filed when, at most, the State‘s evidence could support but one offense. The state alleged a single act of sexual intercourse with S.L., but charged two separate counts under
(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; or . . .
(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;
. . .
shall be imprisoned for not more than 20 years, or fined not more than $10,000.00, or both.
Count I of the State‘s information charged that defendant violated
¶ 24. We agree that defendant could be convicted and sentenced for only one of the two counts charged against him. “When a defendant is tried in a single trial for two statutory offenses that criminalize the same conduct, whether or not a conviction and sentence may be had under each statute is a question of legislative intent, not constitutional prohibition.” State v. Ritter, 167 Vt. 632, 632, 714 A.2d 624, 625 (1998) (mem.) (quoting State v. Grega, 168 Vt. 363, 382, 721 A.2d 445, 458 (1998)). “[W]e apply as a rule of statutory construction the test first enunciated in Blockburger v. United States, 284 U.S. 299, 304 (1932). Under this test, two offenses are considered the same offense for double jeopardy purposes unless ‘each provision requires proof of a fact that the other does not.’ Id.” Ritter, 167 Vt. at 632-33, 714 A.2d at 625. In this case, despite some surface difference, the two offenses charged against defendant are essentially the same. The substantive elements of criminal sexual contact with an unmarried minor under the age of sixteen under
¶ 25. On cursory review, the two charges against defendant do seem facially different. While both sexual-assault crimes require proof that defendant engaged in a sexual act with another person, each offense appears to include additional elements that the other does not. Compelled sexual assault, punishable under
¶ 26. While differences between the two crimes may be apparent, they are not real.2 Despite the language in
¶ 27. At the time of this offense, it was long settled under Vermont law that it was legally impossible for an unmarried child under the age of sixteen to consent to sexual acts. State v. Thompson, 150 Vt. 640, 644, 556 A.2d 95, 98 (1989). Because sexual acts with a single child under sixteen years old were nonconsensual as a matter of law, such acts with such a child were necessarily “compelled” merely by the child‘s incapacity to consent. “The legislature, among others, would certainly be surprised to find that sexual assault on a minor does not involve force or aggression and is consensual, even though consent by a minor is not legally possible.” Id. (citation omitted).
¶ 28. The rule that an underage child cannot consent to sex need not derive from statute, as suggested by the dissent, but is a part of common law. Vermont‘s common law carried over from England,
¶ 29. The dissent correctly observes that the statutory definition of “consent” under
¶ 30. The dissent argues that
¶ 31. If the Legislature really intends consent to be available as a defense for persons having sexual contact with underage children, and to render underage children capable of sexual consent, it must expressly so declare.5 Langle, 146 Vt. at 516, 510 A.2d at 1303.
¶ 32. The statutes defining sexual assault under
¶ 33. The holding of State v. Wheat, 63 Vt. 673, 22 A. 720 (1890) cited by the dissent is not to the contrary. Wheat was indicted and convicted for attempting to assault a female “with the intent to carnally know her against her will.” Id. at 674, 22 A. at 720. The trial court allowed the state to prove that the female was under the age of consent, and instructed the jury “that it was immaterial whether the girl consented to the attempted intercourse or not.” Id. at 675, 22 A. at 720. On appeal, Wheat argued that “the statute which would have deprived him of the defense of consent if his purpose had been accomplished [i.e., statutory rape], does not deprive him of that defense as regards the attempt, and that in the absence of any statutory provision an attempt which is consented to cannot be an assault.” Id. This Court first noted that other jurisdictions had split on the issue, and then expressly declined to rule on it as unnecessary to the disposition of the case. Id.
¶ 34. Instead, the Court focused exclusively on the particular pleading in the indictment. As the dissent recites, the Wheat court recognized the difference between “ordinary” rape and statutory rape, and that in the first offense “the question of age is not involved.” Id. But this was only in the context of how the crime was particularly charged in the indictment against Wheat. Id. Because the indictment charged attempted “ordinary” rape, without any mention of the age of the complainant or any other notice to the defendant that a consent defense could be precluded by virtue of the complainant‘s age, this Court found that fairness to the defendant required that consent remain material while the complainant‘s age should be immaterial. Id. at 676, 22 A. at 720 (“This indictment did not inform the respondent that the charge was one wherein the effect of consent might be taken away by proof of age. He might well assume that nothing but proof of consent was necessary to his defense, and so go to trial without any evidence as to the age of the person consenting.“). The Court repeatedly couched its opinion in terms of leaving open the question that it did not decide: whether proof that the victim was underage eliminated the defense of consent to a charge of attempted rape. Id. (“Even if the law permits a conviction for an attempt which is consented to, we think that, in a trial on this indictment, it was error to hold that consent was immaterial. . . . So, if it were to be held that one may be punished for an unsuccessful attempt to have carnal knowledge of a female under the age of 14 years with her consent, we think that, on the charge here made, proof that the female was under that age would not relieve the state from showing that the attempt was against her will. As this indictment is framed, it is the age which is immaterial, and not the fact of consent.” (Emphasis added)).6
¶ 35. Six years later, State v.Sullivan, 68 Vt. 540, 35 A. 479 (1896), answered the question left open in Wheat. Reviewing a conviction upon an indictment for assault with intent to commit rape that specified the victim was under the age of fourteen, we held that when the charge recites that the attempted rape victim is under the age of consent, “the element of consent is eliminated,” regardless of the element of force otherwise required for the underlying crime of rape. Id. at 543, 35 A. at 479. Ultimately, Wheat is inapposite to the dissent‘s position, and in this case, as in Deyo, the majority follows the law and logic of Sullivan to eliminate consent as irrelevant to prohibited sex with an underage child.7
¶ 36. A later amendment to
¶ 37. The one statutory difference between the two offenses in effect at the time, that the victim must be unmarried to the offender for there to be a violation of
¶ 38. When, as here, the victim was unmarried and under the age of sixteen, there was no practical difference between the offenses charged. Both would punish defendant for the single act of engaging in a sexual act with the minor. Coercion and consent are not elements of statutory rape defined simply as sex with a non-spouse minor under
¶ 39. The Legislature is free to punish the same conduct under two statutes, but its intent to do so must be clear. Ritter, 167 Vt. at 632, 714 A.2d at 625. “Because the two provisions set forth the ‘same’ offense under the Blockburger test, we must presume that the Legislature did not intend for the imposition of cumulative punishment . . . .” Grega, 168 Vt. at 384, 721 A.2d at 460. The presumption may be overcome, but only by a ” ‘clear indication of contrary legislative intent,’ ” such as an explicit provision that the penalty is to apply cumulatively. Id. at 385, 72 A.2d at 460. No clear expression of that sort appears here, where the statute simply provides a generally applicable penalty of a fine and up to twenty years imprisonment for any one of the four sexual offenses disjunctively listed in
Defendant‘s convictions and sentence for the two counts of sexual assault under
FOR THE COURT:
_______________________________________ Associate Justice
Concurring and Dissenting
¶ 40. 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.
¶ 41. 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.
¶ 42. 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.
¶ 43. The majority‘s point expressed over and over again in various statements is that because the common law stated that a minor,9 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.
¶ 44. 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.
¶ 45. 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
¶ 46. 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.
¶ 47. 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.
¶ 48. 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
¶ 49. The first inconsistency is with the definition of “consent” in
¶ 50. 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,
¶ 51. The current statute carries forward the usage from the former rape statutes,
¶ 52. 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.
¶ 53. 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
¶ 54. 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.14
¶ 55. The third inconsistency is with the provisions of
¶ 56. In part, the section deals with the exact issue before us-the capacity of the victim to consent. Thus,
¶ 57. 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,
¶ 58. 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.
¶ 59. 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.
¶ 60. 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.
¶ 61. 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.
¶ 62. 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,
¶ 63. 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.
¶ 64. The obvious plain meaning of the statutory scheme is that the two subsections define separate crimes because consent in
¶ 65. 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
¶ 66. 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)16 (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).
¶ 67. 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
¶ 68. 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.
¶ 69. 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.
¶ 70. 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
¶ 71. 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.
¶ 72. 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 § 3252(3) and an explanation of how lack of consent can be proved in
¶ 73. 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.
¶ 74. 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.
¶ 75. 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.
¶ 76. In Hazelton, the majority holds that defendant cannot be convicted of both sexual assault under
¶ 77. I also note that even if I agreed with the majority in Hazelton on the meaning of the word “consent” in
¶ 78. 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.
¶ 79. 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
¶ 80. The third reason is the most important. The majority‘s construction of
¶ 81. 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