State v. Morris D. NelsonState v. Morris D. Nelson
NOTICE: This opinion is subject to motions for reargument under
¶ 2. Viewed in the light most favorable to the State, the evidence presented at trial reveals the following facts. Around June 2015, defendant began teaching at a residential school and treatment program for girls with special needs located in Bennington, Vermont. He quickly developed a close relationship with complainant, a student at the school who was in the custody of New Hampshire’s “DCF.”1 Beginning that summer, unbeknownst to the school, defendant began to spend time with complainant on weekends at her brother’s residence in New Hampshire. In the fall of 2015, defendant and his wife began talking about having complainant live with them.
¶ 3. In October 2015, defendant took complainant to a concert in Manchester, New Hampshire. He provided her with so much alcohol that they were denied entry into the concert because complainant was, in her words, “way too drunk.” They then returned to the hotel room defendant had booked; it had only one bed. Early the following morning, complainant woke up to find defendant on top of her, forcing his penis into her vagina. Complainant was unable to tell him to stop or push him away because she was too intoxicated. Defendant also forced complainant to have sex at a hotel in Salem, Massachusetts, on October 31 of that year, and at a different hotel in New Hampshire during a weekend when she was visiting her brother.
¶ 4. In late November, defendant stopped working at the school following an incident in which he yelled and cursed at a school program coordinator during a
¶ 5. At some point, complainant began staying regularly at the home defendant shared with his wife. Complainant testified that defendant and his wife set up an arrangement through the New Hampshire court system, making both the defendant and his wife “permanent caring adults” (PCAs) for complainant.2 Thus, complainant was able to leave school three nights a week to stay in defendant’s home. She had her own room in the basement of the home. Defendant’s wife testified that because complainant was nearly eighteen, they did not follow a formal interstate foster-care process, and that instead it was most sensible for complainant to simply live with defendant and his wife with “permission from New Hampshire DCF.” When complainant lived with defendant, he was her primary caretaker.
¶ 6. During Christmas break in December 2015, complainant stayed at defendant’s house for roughly a week while his wife was in Mexico with her children. Beginning on the second night, defendant entered complainant’s room after she had “settled in” to bed and ran his hands up and down her body. According to complainant, on at least one night, he sexually assaulted her by penetrating her vagina with his penis, and on at least three nights he jammed his fingers into her vagina. Defendant physically restrained complainant while sexually assaulting her. These assaults took place in complainant’s bedroom in the basement of defendant’s home.
¶ 7. Complainant testified to a host of other assaults. She testified that defendant groped her in a storage area outside her bedroom, in a computer room, in the kitchen, and on the deck. In a shed on the property, where she worked out a lot, he groped her, and on one occasion he grabbed her aggressively, started taking her clothes off, and ultimately penetrated her vagina with his penis and fingers. Defendant also groped complainant in his truck when they would drive to the store or the gym, and one time he refused to bring her home from the gym in New York where they worked out unless she complied with his demand for oral sex. Complainant did not initially report these assaults because she had come to depend on defendant аnd his wife for a place to live, food, a bank account, and a car. She eventually came forward after a period where she was “away from the house a lot more,” during which time defendant “started getting more and more aggressive.”
¶ 8. The State ultimately charged defendant with three counts: (I) repeated nonconsensual aggravated sexual assault as part of a common scheme and plan, in violation of
¶ 9. Defendant argued that he should be acquitted on the charge of sexual assault of a victim under eighteen entrusted to his care because the State failed to show that a sexual assault occurred in Vermont prior to when he was fired by the Bennington School and no longer complainant’s teacher. The State agreed that there was no evidence of an assault in Vermont before defendant was fired, but argued that he was still in a position of power over complainant because he had been authorized to provide for her health and welfare while she was residing with him. The trial court denied the motion but determined that all three charges would be limited to аssaults that occurred in Vermont, and therefore the start date for all three charges would be December 1, 2015, the first day of the first month following defendant’s termination from the school.
¶ 10. Defendant also argued that he should be acquitted on the charges in Counts II and III because the State failed to show that he was acting as complainant’s legal guardian to prove the elements of entrustment (for Count II) or power, authority, or supervision (for Count III). The State argued that the jury could make both findings based on the testimony that New Hampshire DCF had approved complainant’s residence with defendant. The court concluded that the evidence was sufficient to support the necessary findings for each charge.
¶ 11. During these discussions, the trial court determined that out-of-state acts could not serve as the basis for the charges and that, to ensure jury unanimity, the State had to select a specific act as the basis for each charge. The State disagreed with both determinations but, when pressed, identified the allegations of penis-vagina contact that took place in complainant’s bedroom in December 2015 as the basis for each charge, including as the predicate sexual act for the aggravated-sexual-assault charge. Therefore, in instructing the jury on each count, the court specified, in part, that defendant was charged with “engag[ing] in a sexual act with [complainant] by touching his penis to her vagina in the basement bedroom in December 2015.”
¶ 12. Before instructing the jury, the trial court also noted that “there is some duplication” as to Counts II and III. The court explained that Count II required the State to show that complainant was entrusted to defendant’s care by authority of law and that Count III required the State to show an abuse of a position of power, authority or supervision. The State responded, “There’s different elements, but for our purposes, right now, I think both can go [to] the jury and then [if] there’s return of guilty verdicts in both . . . we can have an argument about [whether] one of them is double jeopardy or not.” Defense counsel did not speak during this exchange.
¶ 13. After the jury returned a guilty verdict on all three counts, defendant filed several motions, including a motion to require the State to make an election to remedy the double-jeopardy issue. Defendant argued that there were double-jeopardy problems between Counts II and III, as well as between Counts I and II, and therefore the court should dismiss Count II. The State argued that because defendant did not raise the double-jeopardy issues at trial, he forfeited those claims. The court issued a written decision concluding that the double-jeopardy claims had been raised but denying them on their merits. The court determined that, for both Counts II and III and Counts I and II, each charge required proof of an element not part of the other charge.
I. Double Jeopardy
¶ 15. Defendant makes two claims under the Double Jeopardy Clause of the United States Constitution. First, he argues that his convictions of both Count I, repeated aggravated sexual assault, and Count II, sexual assault–entrustment, violate his protection against double jeopardy. Second, he argues that his convictions of both Count II, sexual assault–entrustment, and Count III, sexual exploitation of a minor, also violate that protection. The State counters that defendant forfeited his double-jeopardy claims by failing to raise the issue at trial and that defendant’s sentence on all three counts does not violate the Double Jeopardy Clause.
¶ 16. We review these constitutional questions without deference to the trial court. State v. Gagne, 2016 VT 68, ¶ 36, 202 Vt. 255, 148 A.3d 986. The State argues that defendant “forfeited” his double-jeopardy claim by failing to raise it, thereby subjecting it to plain-error review. See State v. Dow, 2016 VT 91, ¶¶ 24-25, 202 Vt. 616, 152 A.3d 437 (holding that where defendant fails to raise double-jeopardy claim, claim is forfeited but not waived, and we review for plain error). But we have held that where a conviction for both offenses violates the Double Jeopardy Clause, “allowing the two convictions to stand denies defendant a substantial right and is plain error.” Id. ¶ 28. We need not address the State’s argument because we would reach the same result under either standard of review.
¶ 17. We first describe our framework for evaluating double-jeopardy claims, including the test in Blockburger v. United States, 284 U.S. 299 (1932). Applying that framework, we conclude that defendant’s convictions on both Counts I and II—repeated aggravated sexual assault and sexual assault–entrustment—are not duplicative and thus do not violate the Double Jeopardy Clause, but that his convictions on both Counts II and III—sexual assault–entrustment and sexual exploitation of a minor—are duplicative and thus cannot stand together.
A. Double Jeopardy Generally
¶ 18. The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution states, “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb . . . .”
¶ 19. “[W]hen determining whether multiple convictions based on one act violate the Double Jeopardy Clause, our central inquiry is one of legislative intent, not constitutional prohibition.” State v. Fonseca-Cintron, 2019 VT 80, ¶ 21, — Vt. —, — A.3d — (quotations omitted). The Legislature may punish the same conduct under two or more statutory provisions, “but its intent to do so must be clear.” State v. Breed, 2015 VT 43, ¶ 16, 198 Vt. 574, 117 A.3d 829 (quoting State v. Grega, 168 Vt. 363, 382, 721 A.2d 445, 458 (1998)).
¶ 21. The Blockburger test “is only a tool of statutory construction,” and our primary aim in construing the statute is to discern the Legislature’s intent. Fonseca-Cintron, 2019 VT 80, ¶ 24. Accordingly, the Blockburger analysis creates only a rebuttable presumption of legislative intent to authorize cumulative punishment that may be overcome ” ‘by a clear indication of a contrary legislative intent.’ ” Id. (quoting Grega, 168 Vt. at 385, 721 A.2d at 460). To the extent ” ‘the matter is not entirely free of doubt, the doubt must be resolved in favor of lenity.’ ” Breed, 2015 VT 43, ¶ 32 (quoting Whalen v. United States, 445 U.S. 684, 694 (1980)). “This policy of lenity means that the Court will not interpret a criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what the Legislature intended.” Grega, 168 Vt. at 387-88, 721 A.2d at 462 (quotation and alterations omitted).
B. Counts I and II
¶ 22. We first hold that defendant’s convictions on both Counts I and II—repeated aggravated sexual assault, in violation of
¶ 23. Because the Legislature has not explicitly indicated an intent to authorize multiple punishments for sexual assault under these two provisions for overlapping conduct, we apply the Blockburger test to the charges at issue. To convict a person of aggravated sexual assault, the State must prove that the person committed the predicate crime of “sexual assault,” pursuant to
¶ 24. To convict defendant of sexual assault–entrustment under
¶ 25. Examining the elements of these two offenses, each crime as charged requires proof of at least one element that the other does not. Both offenses require proof that defendant engaged in a sexual act with complainant. However, Count I requires proof that the sexual acts were nonconsensual, repeated, and part of defendant’s common scheme and plan, none of which are elements of Count II. Count II requires proof that complainant was under the age of eighteen and entrusted to defendant’s care by authority of law, which are not elements of Count I. Applying the Blockburger test, the two counts are not the same offense. Therefore, we presume that the Legislature has authorized cumulative punishment for the same conduct under the two statutory subsections in question—
¶ 26. Section 3253(a)(9) prohibits the commission of aggravated sexual assault through repeated sexual acts as part of a common scheme and plan against any victim, regardless of age. The distinguishing element at the heart of the offense as charged is the repetition of nonconsensual sexual acts as part of a common scheme and plan. See State v. Deyo, 2006 VT 120, ¶ 17, 181 Vt. 89, 915 A.2d 249 (recognizing that legislative intent underlying
¶ 28. Nor are we persuaded to reach a contrary decision by past cases in which we have found a double-jeopardy violation even though the charged offenses each contained distinct elements in satisfaction of the Blockburger test. For example, in State v. Ritter, the defendant was convicted, based on a single act of domestic abuse, of violating two separate subsections of the aggravated-domestic-assault statute—one for committing domestic assault that caused bodily injury while violating specific conditions of a criminal court order and one for committing a second or subsequent domestic assault. We concluded that the Blockburger presumption was overcome and that a double-jeopardy violation existed because both convictions were based on the “defendant’s unitary act against a single victim” and there was “substantial overlap between the aggravating factors” with which defendant was charged. Ritter, 167 Vt. at 633-34, 714 A.2d at 626 (noting that because “[a] person with a prior conviction for domestic assault may very well be subject to an order of protection preventing future abuse,” it was “likely that in a substantial number of cases a person committing a subsequent domestic assault would fall under both sections” of the aggravated-domestic-assault statute). In contrast, the aggravated-assault conviction in this case was based on repeated sexual acts, and no significant overlap exists between the charged offenses in Counts I and II. Hence, the Blockburger presumption that the Legislature intended cumulative punishment where the crimes involve different elements is not overcome.5
¶ 29. Similarly, in State v. Hazelton, the State charged the defendant, based on an alleged “single act of sexual intercourse”
¶ 30. Nor is the instant case controlled by past cases in which we have held that the offenses as charged precluded multiple convictions for the same conduct. For example, in State v. Neisner, the defendant was charged and convicted of two seemingly separate offenses—giving false information to a law enforcеment officer and impeding a public officer. But because the underlying basis of the impeding charge was that the defendant had given false information to the officer, we held that obtaining a guilty verdict on both charges violated the Double Jeopardy Clause. Neisner, 2010 VT 112, ¶ 14 (“While impeding and false information may be independent statutory crimes, as specifically charged here, all the elements of the false information charge were contained in the impeding charge.“). In contrast to Hazelton, here the convictions on the charges in Counts I and II did not “punish[] the same offense.” Id.
¶ 31. Similarly, in State v. Grega, the defendant was convicted and sentenced on charges of aggravated murder and aggravated sexual assault based on his single act of murdering his wife while perpetrating a sexual assault. The aggravating factor for the murder charge was that the defendant committed the murder while perpetrating a sexual assault. The aggravating factor for the sexual-assault charge was that the defendant committed the sexual assault while causing serious bodily injury. We held that the charges did not satisfy the Blockburger test because proof of death will always include proof of serious bodily injury, and thus proof of the elements of the aggravated-murder charge necessarily proved every element of the aggravated-sexual-assault charge. Grega, 168 Vt. at 384-85, 721 A.2d at 459-460. After analyzing the two statutory schemes, we concluded that the Blockburger presumption that the Legislature did not intend to allow convictions under both statutes where the crimes as charged involved the same elements could not be overcome. Id. at 385-88, 721 A.2d at 460-62. In contrast, in the instant case, the Blockburger test is met and the presumption is that the Legislature did intend to allow convictions for both offenses as charged in Counts I and II. We find no basis to overcome that presumption.
¶ 32. State v. Breed is another case in which the charged offenses did not satisfy the Blockburger test. In that case, based on a single incident in which the defendant invited the complainant into his apartment under false pretenses and then forced her to engage in a sexual act without her consent, the State charged defendant with engaging in a “sexual act” with another person without that person’s consent, in violation of
¶ 33. Here, we find no basis to overcome the contrary Blockburger presumption where the aggravated-sexual-assault charge required the State to prove that defendant engaged in repeated nonconsensual acts with the complainant. Cf. State v. Wiley, 2007 VT 13, ¶ 11, 181 Vt. 300, 917 A.2d 501 (finding that Blockburger was satisfied and rejecting double-jeopardy challenge to convictions of both lewd-and-lascivious conduct with child and aggravated sexual assault based on defendant having committed repeated nonconsensual sexual acts as part of common scheme). After considering the State’s charges in Counts I and II, and examining the above case law, we conclude that defendant’s convictions and sentencing under both counts do not violate the Double Jeopardy Clause. Defendant was not punished for a “single act” under both counts, as the dissent asserts, post, ¶ 61, but rather for sexually assaulting a person under the age of eighteen entrusted to his care by authority of law and, further, for assaulting that person repeatedly as part of a common scheme and plan.
C. Counts II and III
¶ 34. On the other hand, we conclude that defendant’s convictions on both Counts II and III—sexual assault–entrustment and sexual exploitation of a minor, in violation of
¶ 35. Under our initial Blockburger analysis, each charged statute contains a factual element not required by the other count. The relevant portions of
No person shall engage in a sexual act with a minor if:
(1) the actor is at least 48 months older than the minor; and
(2) the actor is in a position of power, authority, or supervision over the minor by virtue of the actor‘s undertaking the responsibility . . . to provide for the health or welfare of minors.
¶ 36. However, defendant argues that because, as charged in this case, both the entrustment element and position-of-power element rest on the same factual basis—that defendant was caring for complainant with permission from New Hampshire DCF—he cannot be convicted of both offenses without violating the Double Jeopardy Clause. He points to State v. Breed, where we held that the State could not punish defendant for both sexual assault and sexual abuse of a vulnerable adult based on the same conduct. 2015 VT 43, ¶¶ 19-21.
¶ 37. We agree that our decision in Breed is applicable here. In that case, we concluded that, as charged, “every element that must be proved for a conviction of sexual assault under § 3252(a)(1) must also be proved for a conviction of sexual assault of a vulnerable adult under [13 V.S.A.] § 1379(b).” Id. ¶ 19. There was only one element that was required in § 3252(a)(1) but not § 1379(b): sexual assault required proof of a sexual “act,” while sexual abuse of a vulnerable adult could be based on sexual “activity.” Id. We reasoned, however, that the only conduct alleged was conduct that was a “sexual act,” and no evidence was presented of conduct that would constitute only “sexual activity.” Id. ¶ 21. Thus, we determined that “the jurors necessarily concluded that defendant engaged in a sexual act with the victim, allowing the court to impose the higher sentence,” and therefore “the sexual-assault charge did not require any proof of a fact or element not included in the vulnerable-adult charge.” Id.
¶ 38. Here, both elements—entrustment under authority of law and an undertaking to provide for the health and welfare of children—rested on the same factual allegation. By December 2015, defendant was no longer complainant’s teacher, and the only position of authority he held over her was his status pursuant to his agreement with New Hampshire DCF. In some circumstances, a person may meet the element of one offense but not the other—for instance, a babysitter or sports coach may have undertaken to provide for the health and welfare of children, but would not be entrusted with the care of children by authority of law. But in this case, the undertaking and entrustment elements were based on the same allegation.
¶ 39. We cannot presume that the Legislature intended to allow for multiple convictions, in circumstances such as this, where a defendant is both entrusted with the care of a complainant by authority of law and is in a position of power, authority, or supervision over the minor and abuses the position of power and authority. Compare
¶ 40. There may be some situations in which the elements are separately established for both sexual exploitation of a minor and sexual assault–entrustment—if, for instance, an adult serves in more than one role in a child’s life. But in this case, where the State relied on the same fact to meet both the entrustment element of sexual assault and the position-of-power element of sexual exploitation, conviction of both offenses violates the Double Jeopardy Clause.
D. The Mandate
¶ 41. “Given our conclusion that there is a double-jeopardy violation,” we must decide “which conviction to vacate and whether to remand the matter for resentencing.” Breed, 2015 VT 43, ¶ 43. The State has requested that we dismiss Count III, the sexual-exploitation count, if we concluded that Counts II and III were duplicative and thus violative of the Double Jeopardy Clause. Accordingly, we vacate Count III. See Dow, 2016 VT 91, ¶¶ 29-30 (vacating lesser conviction upon State‘s request after noting that “the State has the right to choose which charge is to be dismissed” following finding of double-jeopardy violation).
¶ 42. As for the second issue, defendant argues only that if we reverse the conviction on Count II (sexual assault–entrustment), we should remand for resentencing on Count I (aggravated sexual assault–repeated acts) because the trial court indicated that a two-year increase from the ten-year minimum sentence for the aggravated-sexual-assault conviction was required due to defendant’s conviction on Count II. We are not reversing defendant’s conviction on Count II, however, and the trial court made no mention of Count III at the sentencing hearing with respect to increasing defendant’s minimum sentence. The maximum sentence for both Counts I and II is life imprisonment. Given these circumstances, we are not persuaded that the trial court’s sentence would change following our vacation of Count III. Accordingly, we decline to remand the case for resentencing. See Breed, 2015 VT 43, ¶ 44 (declining to remand for resentencing on affirmed
II. Entrustment (Count II)
¶ 43. We reject defendant’s argument that the State failed to present sufficient evidence to establish an essential element of sexual assault–entrustment: that complainant was “entrusted to
[his] care by authority of law.” See
¶ 44. As discussed in Part I, a person is guilty of sexual assault if they “engage in a sexual act with a child who is under the age of 18 and is entrusted to the actor‘s care by authority of law or is the actor‘s child, grandchild, foster child, adopted child, or stepchild.”
¶ 45. On appeal, defendant argues that there is no evidence that PCAs have any decision-making authority. Therefore, he argues, there was insufficient evidence for the jury to conclude that complainant was entrusted to his care by authority of law.
¶ 46. When considering a challenge to the sufficiency of the evidence, “this Court reviews the evidence in the light most favorable to the State, excluding any modifying evidence, to ‘determine whether that evidence sufficiently and fairly supports a finding of guilt beyond a reasonable doubt.’ ” State v. O‘Neill, 2019 VT 19, ¶ 35, 209 Vt. 599, 209 A.3d 1213 (quoting State v. Brochu, 2008 VT 21, ¶ 21, 183 Vt. 269, 949 A.2d 1035). The jury‘s verdict will stand “so long as the jury by way of a process of rational inference could conclude beyond a reasonable doubt that defendant committed the acts . . . charged.” Id. (quotation omitted). For purposes of reviewing the sufficiency of the evidence, we measure the evidence against the elements of the crime charged, and do not necessarily hold the State to additional elements not charged by the State or essential to prove the crimes charged. Musacchio v. U.S., 136 S. Ct. 709, 715 (2016). We review questions of statutory interpretation without deference. State v. Berard, 2019 VT 65, ¶ 7, ___ Vt. ___, 220 A.3d 759.
¶ 47. We conclude that, for the purposes of
¶ 48. The plain language of
¶ 49. The purpose of
¶ 50. Given our understanding of the law and viewing the evidence in the light most favorable to the State, we conclude that the State produced sufficient evidence that complainant was entrusted to defendant‘s care by “authority of law.” Complainant testified that defendant and his wife obtained PCA status, that complainant was legally permitted to stay with them three nights a week, and that they took her to doctor‘s appointments and court cases. Defendant‘s wife testified that while they did not go through a formal process to obtain custody, they nevertheless “met with [complainant‘s] caseworker . . . and came up with a plan about her coming to live with us,” and ultimately got “permission from New Hampshire DCF” to have complainant live with them. Based on this testimony, even if the jury discounted complainant‘s testimony that defendant and his wife obtained a court order based on the testimony of defendant‘s wife to the contrary, a reasonable jury could still have concluded that New Hampshire DCF formally authorized complainant‘s living situation with
III. Unanimity (Count I)
¶ 51. Finally, we address defendant‘s argument that the trial court failed to instruct the jury that it must be unanimous as to the “repeated nonconsensual acts” that made up one of the elements of Count I—aggravated sexual assault based on repeated instances of sexual acts.
¶ 52. Defendant did not preserve this argument, and we therefore review for plain error. State v. Bellanger, 2018 VT 13, ¶ 12, 206 Vt. 489, 183 A.3d 550 (“When an objection to a jury instruction is unpreserved—and the trial court has not had its due opportunity to avoid error—we review the claim on appeal for plain error.“). On plain-error review, defendant must show that: “(1) there was error, (2) the error is obvious, (3) the error affects the substantial rights of and results in prejudice to the defendant, and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” State v. Ray, 2019 VT 51, ¶ 6, ___ Vt. ___, 216 A.3d 1274 (quotation omitted). “Plain error will be found only in rare and extraordinary cases where the error is obvious and strikes at the heart of defendant‘s constitutional rights or results in a miscarriage of justice.” State v. Lumumba, 2018 VT 40, ¶ 16, 207 Vt. 254, 187 A.3d 353 (quotation omitted).
¶ 53. We conclude that although the trial court did not instruct the jury that it had to be unanimous as to the repeated acts, the instructions did not amount to plain error. A specific unanimity instruction is required wherever either party materially distinguishes between different acts that might constitute the offense. Here, the trial court provided а specific unanimity instruction for the predicate sexual assault, but not for the “repeated nonconsensual sexual acts” required by the aggravating element. We conclude that the court‘s failure to do so does not amount to plain error because defendant cannot show prejudice. We therefore affirm defendant‘s conviction of repeated aggravated sexual assault.
¶ 54. Under the Vermont Constitution, a defendant may not be found guilty of a crime unless the jury is unanimous.
¶ 55. In determining whether a specific unanimity instruction is required, the “critical inquiry is whether either party has presented evidence that materially
¶ 56. A “mere possibility” that the jury was not unanimous does not necessarily rise to the level of plain error. In re Carter, 2004 VT 21, ¶ 26, 176 Vt. 322, 848 A.2d 281 (citing State v. Holcomb, 156 Vt. 251, 254-55, 590 A.2d 894, 895-96 (1991)). Plain error requires a showing of prejudice, or in other words a “reasonable probability that the error affected the outcome of the trial.” Bellanger, 2018 VT 13, ¶ 15 (quotation omitted). Defendant must show that there was a “reasonable” likelihood that the jury‘s verdict was not unanimous. Id.; see also Carter, 2004 VT 21, ¶ 24 (holding there was no plain error because defendant had shown “little likelihood of prejudice“); Nicholas, 2016 VT 92, ¶ 32 (holding there was no plain error where non-unanimity was “theoretically possible, but . . . so highly unlikely that the mere theoretical possibility does not rise to the level of plain error“).
¶ 57. Here, the State elected a specific act to serve as the foundational sexual assault for defendant‘s aggravated charge. The instruction for the foundational sexual assault was: “the State alleges that [defendant] engaged in a sexual act with [complainant] by touching his penis to her vagina in the basement bedroom in December 2015. You must be unanimous as to the specific event that occurred.” Although complainant described several instances in the bedroom, she testified that defendant penetrated her with his hand “three out of the rest of the four” nights that she was staying in defendant‘s house in December 2015. Complainant‘s testimony focused primarily on the first sexual assault and did meaningfully distinguish between the other incidents. Defendant does not challenge this portion of the jury instructions, and it is clearly sufficient to ensure a unanimous verdict as to the foundational sexual assault.
¶ 58. However, the State did not specifically identify which act or acts served as the additional act or acts required to prove repeated sexual assault under
¶ 59. But even if the trial court erred in failing to include a specific unanimity instruction for the second repeated act under
¶ 60. In light of these circumstances, for two reasons there is no “reasonable possibility” that some members of the jury found complainant credible as to certain instances of sexual assault while other members of the jury believed her credible as to different, exclusive instances. First, as in Bellanger, defendant‘s theory was “all or nothing,” and the jurors were “either going to believe [complainant] or they‘re not.” 2018 VT 13, ¶ 17 (quotation omitted). We reasoned in Bellanger that the defense had raised “only a single issue—witness credibility,” and that the jury had convicted despite that defense. Id. ¶ 18. In that situation, and absent any evidence that the jurors would have reached a different verdict had a specific unanimity instruction been correctly given, the error was not reversible error. Id. The same is true here. Second, it is undisputed that the jurors were unanimous as to at least one instance of sexual assault in the bedroom because that was the predicate offense for which a jury instruction was given. Complainant testified that defendant assaulted her in the bedroom with his fingers on three out of four nights while she was staying with him. It is highly unlikely that the jury believed defendant committed exactly one assault in the bedroom, but not more. Under the circumstances of this case, there is no reasonable possibility that the jury would have returned a different verdict had they received a proper instruction.
Defendant‘s sexual-exploitation conviction is vacated. Defendant‘s sеxual-assault and aggravated-sexual-assault convictions, as well as the sentence imposed by the criminal division, are affirmed.
FOR THE COURT:
Associate Justice
¶ 61. ROBINSON, J., dissenting. I cannot agree that defendant may be convicted and punished for a single act of sexual assault pursuant to both Count I, which charges aggravated sexual assault under
¶ 62. I agree with the majority‘s conclusion that a literal application of the Blockburger test to the aggravated sexual assault charge and the sexual assault-entrustment charge would support a presumption that the Legislature intended to allow punishment for both charges. But that is not the end of the analysis. The Blockburger test is an aid to discern legislative intent, not an end in itself. It is a tool that is particularly ill-suited to compound and predicate offenses. In general, a defendant can‘t be convicted and punished for both a greater- and a lesser-included offense, for both a predicate offense and a compound offense resting on the same predicate. Regardless of whether Counts I and II are greater- and lesser-included offenses, or a compound offense and a predicate offense, the critical issue in this case is whether the Legislature intended to treat sexual assault based on lack of consent pursuant to
¶ 63. We have recognized, and the majority acknowledges, that the Blockburger test “is only a tool of statutory construction.” Ante, ¶ 21 (quoting State v. Fonseca-Cintron, 2019 VT 80, ¶ 24, ___ Vt. ___, 215 A.3d 111). It is not dispositive of the double-jeopardy question. Our goal remains to discern whether the Legislature intended to authorize conviction and punishment for the act in question pursuant to both statutes. State v. Grega, 168 Vt. 363, 382, 721 A.2d 445, 458 (1998) (“[W]hether or not a conviction and sentence may be had under each statute is a question of legislative intent, not constitutional prohibition.“). Although the Legislature is free to impose multiple punishments, “its intent to do so must be clear.” Id.
¶ 64. We have also noted that the Blockburger test is “useful in identifying statutes that define greater and lesser included offenses in the traditional sense,” but is “less satisfactory, and perhaps even misdirected, when applied to statutes defining ‘compound’ and ‘predicate’ offenses.” Grega, 168 Vt. at 387, 721 A.2d at 461 (quoting Whalen v. United States, 445 U.S. 684, 708 (1980) (Rehnquist, J., dissenting)). “[T]wo statutes stand in the relationship of compound and predicate offenses when one statute incorporates several other offenses by reference and compounds those offenses if a certain additional element is present.” Whalen, 445 U.S. at 709 (Rehnquist, J., dissenting). Justice Rehnquist offered the example of a statute providing that “[w]hoever . . . uses a firearm to commit any felony for which he may be prosecuted in a court of the United States . . . shall . . . be sentenced to a term of imprisonment for not less than one year nor more than ten years.” Id. (quoting
Traditionally, greater and lesser-included offenses reflect a ” ‘continuum of culpability’ ”
in which each offense along the continuum ” ‘serve[s] to vindicate the same social norm.’ ” For example, first-degree murder and murder in lesser degrees are themselves lesser-included offenses of aggravated murder because each of these offenses serves to vindicate the commission of a homicide. The offenses along the continuum are logically related. The progression along this continuum reflects increasingly culpable acts of homicide warranting increasingly severe punishment.
Grega, 168 Vt. at 387, 721 A.2d at 461 (citations omitted).
¶ 65. The law is clear that in the absence of a “clear indication of a contrary legislative intent,” a defendant cannot be convicted of and punished for both an offense and a lesser-included offense. See Grega, 168 Vt. at 384-85, 721 A.2d at 459-60 (concluding that serious bodily injury was not separate element from death because “proof of death will always include proof of serious bodily injury“); see also, e.g., Breed, 2015 VT 43, ¶ 19 (holding that multiple convictions violated Double Jeopardy Clause where every element of sexual-assault charge must also be proved for charge of sexual assault of vulnerable adult). In the context of compound and predicate offenses, the United States Supreme Court has explained that the Double Jeopardy Clause prohibits dual convictions of a compound offense and the specific predicate offense relied upon to support the conviction of the compound offense. See Whalen, 445 U.S. at 693-94. In Whalen, the Court explained that a defendant charged with felony murder based upon a killing in the course of a rape cannot be convicted of both rape and felony murder, but a defendant charged with felony murder based upon a killing in the course of a robbery may be convicted of both rape and felony murder. Id.
¶ 66. The two statutes at issue here have some characteristics of traditional greater- and lesser-included offenses, and some features of the compound and predicate offense framework. The aggravated sexual assault statute establishes greater penalties for sexual assaults committed under any of nine enumerated circumstances, including when the actor subjects the victim to repeated nonconsensual sexual acts as part of a common schеme and plan.
¶ 67. However,
¶ 68. The State avoids such an obvious double-jeopardy violation by predicating the aggravated sexual assault charge on a sexual assault based on one set of elements—compelling a person to participate in a sexual act without the other person‘s consent under
¶ 69. Thus, the critical question, unaddressed by the majority, is whether the Legislature intended to authorize cumulative punishment for two charges of sexual assault for the same incident under both
¶ 71. In Hazelton, this Court held that two subsections of the sexual assault statute, now listed as subsections (a) and (c)—lack of consent and statutory rape, respectively—define the same crime for double-jeopardy purposes. 2006 VT 121, ¶ 38. In that case, the defendant had sexually assaulted a minor by use of force and was charged with two counts of sexual assault based on that act—one for the nonconsensual sexual act, and one for the sexual act with a minor. Acknowledging the Blockburger test, we noted that the two charges seemed “facially different.” Id. ¶ 25. However, we stated that at common law, it is legally impossible for an unmarried child under the age of sixteen to consent to sexual acts, and therefore any conviction under subsection (c) necessarily satisfies all of the elements for subsection (a). Id. ¶ 37; see also State v. Deyo, 2006 VT 120, ¶ 11, 181 Vt. 89, 915 A.2d 249 (upholding jury instruction that to prove lack of consent, jury “must find that [complainant] was under the age of sixteen at the time of any sexual act, making such acts nonconsensual as a matter of law“). Because “both subsections [(a) and (c)] require only an allegation that the defendant engaged in a sexual act with a person under the age of sixteen,” we held that they were the same offense for cases involving such victims. Hazelton, 2006 VT 121, ¶¶ 38-39.
¶ 72. The logic of Hazelton applies to
¶ 73. In addition, allowing both convictions in this situation would result in illogical results. Subsection (e) prohibits sexual acts with a child under the age of sixteen if:
(1) the victim is entrusted to the actor‘s care by authority of law or is the actor‘s child, grandchild, foster child, adopted child, or stepchild; or
(2) the actor is at least 18 years of age, resides in the victim‘s household,
and serves in a parental role with respect to the victim.
¶ 74. For the above reasons, I cannot join the majority‘s conclusion that the Legislature has expressed a clear intent to allow conviction of both sexual assault under subsection (d) and aggravated sexual assault with
Associate Justice