State v. Hazelton

Annotate this Case

State v. Hazelton (2004-283)

2006 VT 121

[Filed 22-Nov-2006]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

2006 VT 121

No. 2004-283

State of Vermont Supreme Court

On Appeal from
v. District Court of Vermont,
Unit No. 2, Bennington Circuit

Sherrill Hazelton September Term, 2005

David T. Suntag, J.

William D. Wright, Bennington County State's Attorney, and David R. Fenster
and Daniel M. McManus, Deputy State's Attorneys, Bennington, for
Plaintiff-Appellee.

Matthew F. Valerio, Defender General, Henry Hinton, Appellate Defender, and
Rebecca Turner, Law Clerk (On the Brief), Montpelier, for
Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

¶ 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.

¶ 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 V.R.E. 801(d)(1)(B), but for rehabilitation after the
witness was impeached by prior inconsistent statements. Id. at 605-06, 708 A.2d at 1342. Defendant posits that Church should be limited or overruled.
For the reasons discussed below, we agree with defendant that the trial
court's application of Church to the instant case was overly broad and
erroneous.

¶ 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 V.R.E. 801(d)(1)(B). 167 Vt. at 605,
708 A.2d at 1342; see also V.R.E. 801(d)(1)(B) (providing that a statement
is not hearsay if consistent with the witness's trial testimony and
"offered to rebut an express or implied charge against him of recent
fabrication or improper influence or motive"). Rule 801(d)(1)(B) was
inapplicable in Church, because the statements were not offered as
substantive non-hearsay evidence under that rule, but were offered solely
to rehabilitate the witness after her credibility was impeached by an
apparent recantation. 167 Vt. at 605, 708 A.2d at 1342 ("V.R.E.
801(d)(1)(B) does not govern the admissibility of prior consistent
statements to rehabilitate a witness; it 'merely allow[s] a certain subset
of these statements to be used as substantive evidence of the truth of the
matter asserted.' " (quoting United States v. Ellis, 121 F.3d 908, 919 (4th
Cir. 1997), cert. denied, 522 U.S. 1068 (1998))).

¶ 11. That the evidence is not offered under Rule 801(d)(1)(B) for
substantive purposes does not end the inquiry into the relevance of prior
consistent statements for rehabilitative purposes, nor their admissibility.
As we stated in Church, a prior consistent statement offered to
rehabilitate a witness "is admissible when it has 'some rebutting force
beyond the mere fact that the witness has repeated on a prior occasion a
statement consistent with his trial testimony.' " 167 Vt. at 605, 708 A.2d
at 1342 (quoting Ellis, 121 F.3d at 920) (emphasis added). As observed in
Ellis, prior consistent statements have significant rebutting force and
countering effect where they "serve to clarify whether the impeaching
statements really were inconsistent within the context of an interview, and
if so, to what extent"; where they are "offered to clarify or amplify the
meaning of the impeaching inconsistent statement"; where they "bear on
whether, looking at the whole picture, there was any real inconsistency";
or where, in accord with the "Doctrine of Completeness," the one against
whom part of a statement has been admitted into evidence seeks to
complement the evidence by putting in the remainder of the statement to
demonstrate a "complete understanding of the total tenor and effect of the
statement." 121 F.3d at 920 (internal citations and quotations omitted).

¶ 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." (FN1) 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 13 V.S.A. § 3252, which provides, in pertinent part:

(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 §
3252(a)(3) by engaging in sexual intercourse with a person under the age of
sixteen to whom he was not married. Count II charged that defendant
violated § 3252(a)(1) by compelling a person to participate in a sexual act
"without consent," an apparent violation of subsection (a)(1)(A).

¶ 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 §
3252(a)(3) are the same as the substantive elements of sexual assault
compelled "without . . . consent" under § 3252(a)(1)(A).

¶ 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 § 3252(a)(1)(A), (B) or (C), addresses an
offender who "compels" a victim to engage in a sexual act, either without
consent, by threat or force, or by putting the victim in fear of immediate
injury to any person. Strict liability sexual assault, or so-called
statutory rape, criminalized by § 3252(a)(3), turns on whether the person
engaged by an offender in a sexual act was not married to the offender and
was under the age of sixteen at the time. Neither compulsion nor consent
are elements of, or even relevant to, the § 3252(a)(3) offense of statutory
rape, so that, typically, "nothing more than a calendar and the person's
birth certificate are required to determine the statute's applicability."
State v. Barlow, 160 Vt. 527, 530, 630 A.2d 1299, 1301 (1993).

¶ 26. While differences between the two crimes may be apparent, they
are not real. (FN2) Despite the language in § 3252(a)(1)(A) outlawing one
who "[c]ompels the other person to participate in a sexual act . . .
[w]ithout the consent of the other person," no actual force or compulsion
is necessary to commit the offense. No greater degree of compulsion is
actually required for a violation of subsection (a)(1)(A) than is included
as a matter of law in the offense of statutory rape under subsection
(a)(3). The victim is "compelled" to engage in a sexual act in violation
of § 3252(a)(1)(A) as the result of an offender's conduct to unilaterally
engage another in a sexual act "without consent," that is, without any
indication that the victim is freely willing to participate. See 13 V.S.A.
§ 3251(3) (" 'Consent' means words or actions by a person indicating a
voluntary agreement to engage in a sexual act."). The element of
compulsion is satisfied by lack of consent alone. That any compulsion
beyond lack of consent is not an element of § 3252(a)(1)(A) is
confirmed by the statute's explicit coverage of sexual assault compelled by
actual threat, force, or intimidation in subsequent subsections
3252(a)(1)(B) and (C), as well as our holding in State v.Nash that
subsections (A), (B) and (C) of §3252(a)(1) "are separate ways by which the
single offense of 'compelling' may be committed." 144 Vt. 427, 433, 479 A.2d 757, 760 (1984).

¶ 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, 1 V.S.A.§271, (FN3)
included the statute 18 Eliz., c. 7, making it a felony to have carnal
knowledge of a girl under the age of ten "with or without her consent,"and
its case law establishing the legal impossibility that an underage child
could consent to sex. See Coates v. State, 7 S.W. 304, 306 (1888)
(explaining that under the statute of 18 Elizabeth, "in force [similarly to
Vermont] when we adopted the law of England as our own . . . [t]he
presumption in every such case was that the female, by reason of her tender
years, was incapable of consenting . . . [and] the presumption was
conclusive"); 2 W. LaFave, Substantive Criminal Law §17.4(c), at 648 (2d
ed. 2003) (the rationale of the statute "was that a child under that age
'should be regarded by the law as incapable of giving effective
consent.'(citing history related in the Model Penal Code § 213.1, cmt. at
276 (1980))." At the time of this charge, no statute altered the common
law in this regard, except to extend the incapacity to consent from age ten
to eleven, 1791 Haswell, p. 294, to fourteen, 1886, No. 63, § 1, and then
to sixteen years of age, 1898, No. 118, § 1, with an exception for married
minors added later. 13 V.S.A. § 3252(a)(3); 1985, No. 83 § 2.

¶ 29. The dissent correctly observes that the statutory definition
of "consent" under 13 V.S.A. § 3251(3), nowhere excludes minors from
entering into voluntary agreements to engage in sexual acts, but this
statute does not alter the common law making such consent by underage
children a legal impossibility. "The common law is changed by statute only
if the statute overturns the common law in clear and unambiguous language,
or if the statute is clearly inconsistent with the common law, or the
statute attempts to cover the entire subject matter." Langle v. Kurkul,
146 Vt. 513, 516, 510 A.2d 1301, 1303 (1986). The statute simply fails to
address the issue of a minor's legal capacity to consent, and the
definition is not inconsistent with a minor's incapacity to consent under
common law. Since enactment of this statutory scheme in 1977, this Court
has continued to recognize the application of common law impossibility of
consent by underage minors. Thompson, 150 Vt. at 644, 556 A.2d at 98; N.
Sec. Ins. Co. V. Perron, 172 Vt. 204, 216, 777 A.2d 151, 160 (2001)
("[M]inors cannot appreciate the nature and consequences of, and therefore
lack the ability to consent to, sexual activity for purposes of Vermont
criminal law.").

¶ 30. The dissent argues that § 3254, providing that "lack of
consent" is proved when the actor "[k]nows the other person is mentally
incapable of understanding the nature of the sexual act," or "is not
physically capable of resisting, or declining consent," applies to a person
engaging in sex with underage children. This supposes a legislative
purpose to gauge culpability upon the accused's subjective assessment of an
underage child's capacity to consent to sexual contact. This approach
would seem to resurrect notions of "mistake" as a defense to a §
3252(a)(1)(A) charge of sexual contact with an underage child "without . .
. consent," which the dissent contends is an offense distinct from
statutory rape. However, "sexual intercourse with a [child] under a
certain age, has traditionally been considered a strict liability offense
where 'mistake as to the age of an underage participant has been accorded
no defensive significance.' " State v. Searles, 159 Vt. 525, 527, 621 A.2d 1281, 1283 (1993) (citations omitted) (observing that "Vermont has neither
statutorily deviated from the traditional rule, nor done so by judicial
decision."). As pointed out in Deyo, 2006 VT 120, ¶ 20, the dissent's
reading of the statute would also appear to extend the defense of consent
to repeated sexual acts between an incestuous parent and an underage child.
(FN4) We view such legislative intentions as unlikely.

¶ 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. (FN5) Langle, 146 Vt. at 516, 510 A.2d at 1303.

¶ 32. The statutes defining sexual assault under § 3252(a)(1)(A),
sexual assault of minors under § 3252(a)(3), or aggravated sexual assault
under § 3253 did nothing to abrogate an unmarried minor's common law
incapacity to consent to sex. The succession of Vermont statutes
criminalizing sex with underage children "with or without" their consent do
not contradict the common law's conclusive presumption against consent by
underage children. The Legislature simply repeated this original language
from 18 Elizabeth, c. 7 while extending, in stages, the age of nonconsent
from ten to sixteen years of age. In State v. Sullivan we held that where
the statute prohibited sexual contact with a child under the age of
fourteen "with or without her consent," and where a charge of violating
another statute prohibiting "assault to commit rape" specified that the
victim was under the age of fourteen, "the element of consent is
eliminated" even though rape would ordinarily require proof of force
against the will or without the consent of the victim. 68 Vt. 540, 35 A. 479 (1896). The Court also noted that the same offense was "indictable at
common law." Id. The legislative reference to "with or without consent"
did not suggest that an underage child could consent to sex.

¶ 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)). (FN6)

¶ 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. (FN7)

¶ 36. A later amendment to § 3252(a)(3) redefining "statutory rape"
is raised by the dissent as an example of when the "consent in fact"
defense is available, but compels no change in the foregoing analysis. The
new legislation provides that a person over the age of fifteen may consent
to sex with another under the age of nineteen. 2005, No. 192 (Adj. Sess.),
§ 10. (FN8) The amendment simply rolls back the statutory age of consent,
by one year, for actors within the age bracket of fifteen to nineteen years
old. This exception to the common law, expressly carved out by the
Legislature, still does not make consent to sex any less impossible for
children outside of the specified age bracket who remain, as before,
statutorily under the age of consent. Indeed, it was the impossibility of
consent under common law that made it necessary to legislate the new
exemption from strict criminal liability for sexual contact between
fifteen-year-olds and those under nineteen years of age. The dissent's
reliance on the § 3252(a)(3) recognition of consent by married
fifteen-year-olds, otherwise under the age of consent, to support the
proposition that children can consent to sex regardless of age, is
misplaced. This exception, fully within the Legislature's power, is
expressly limited to the circumstance of a minor's marriage, and does not
abrogate the general common law rule that other underage minors cannot
consent to sex.

¶ 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 § 3252(a)(3), is so insubstantial as to be
indistinct. When the victim is under sixteen, the gravamen of both charges
is that the victim is incapable of consent unless married to the
defendant. The fact of a married minor is so unlikely that the pleading
requirement of § 3252(a)(3) is practically moot. While the absence of
marriage must be affirmatively pled for a charge of statutory rape under §
3252(a)(3), the fact of marriage is equally relevant to a charge of
compelled sexual assault under § 3252(a)(1)(A) when the victim is under
sixteen, since legislative recognition of a minor's marriage introduces the
defense of consent to both charges. Once the issue of a minor's marriage
to the accused is raised, under both § 3252(a)(1)(A) and § 3252(a)(3), the
State has the burden of proving actual lack of consent in either case. In
real terms of actual liability, the required allegation of non-marriage in
one offense, but not the other, is meaningless.

¶ 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 § 3252(a)(3), and
actual coercion and lack of consent are equally irrelevant to a charge of
"compelled" sexual assault against a non-spouse minor under § 3252(a)(1)(A)
since consent is impossible and the offense of "compels" is automatically
satisfied by the absence of consent under Nash, 144 Vt. at 433, 479 A.2d at
760. The exact words to be pled may differ, but both subsections require
only an allegation that the defendant engaged in a sexual act with a person
under the age of sixteen.

¶ 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 § 3252 (a)(1) through (4). The statute is silent as to any
legislative purpose to impose a cumulative penalty for a single incident
violating both subsections dealing with the same nonconsensual sexual act,
a "statutory rape" under § 3252(a)(3) and a sexual contact "without . . .
consent" under § 3252(a)(1)(A). Accordingly, only one sentence may be
imposed in the event of conviction.

Defendant's convictions and sentence for the two counts of sexual
assault under 13 V.S.A. § 3252(a) are vacated, and the judgments
reversed, and the matter is remanded for a new trial.

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, (FN9) 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 13 V.S.A.
§ 3252(a), the basic sexual assault statute. It provides:

Id. The second is the statutory rape statute, also contained in § 3252(a).
It provides:

(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[.]

Id. The third is the aggravated sexual assault statute, 13 V.S.A. §
3253(a). It provides in relevant part:

(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.

Id. The maximum penalty for aggravated sexual assault is life
imprisonment. Id. § 3253(b).

¶ 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 § 3253(a)(9) to adopt the common
law rule that a minor cannot consent to sexual contact. (FN10) Thus, if
the defendant performs repeated sexual acts with a minor in the same
occurrence or part of a common scheme or plan, defendant has committed
aggravated sexual assault. Under our decision in State v. Fuller, 168 Vt.
396, 402, 721 A.2d 475, 480 (1998), "repeated" means twice.

¶ 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. 13 V.S.A. § 3252(f)(2). At the same time it
established a mandatory minimum sentence for aggravated sexual assault, the
offense involved in Deyo. That mandatory minimum sentence is normally ten
years in jail, but in special circumstances it can be reduced to five yeas
in jail. Id. § 3253(c)(1),(2). A person subject to the mandatory minimum
cannot have the sentenced reduced "for probation, parole, furlough, or any
other type of early release" until the minimum is served. Id. §
3253(c)(1). Thus, while reducing the penalty for one incident of statutory
rape, the Legislature has made even harsher the sentence for repeated
nonconsensual sexual acts.

¶ 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 § 3251(3)
and § 3254. In general, the usage in these statutes is wholly inconsistent
with the definition the majority has adopted.

¶ 49. The first inconsistency is with the definition of "consent" in
13 V.S.A. § 3251(3): "words or actions by a person indicating a voluntary
agreement to engage in a sexual act." Nowhere does the definition convey
that voluntary agreement by a minor is not consent, the holding of the
majority. Indeed, the plain meaning of the words is to the contrary. The
majority has no explanation for this inconsistency other than that the
common law, not the statute, defines consent. Where the Legislature has
taken on itself the responsibility of defining consent, that explanation is
wrong.

¶ 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, § 3252(a)(3), provides that a person commits
sexual assault if the "other person is under the age of 16, except where
the persons are married to each other and the sexual act is consensual."
(Emphasis supplied.) Obviously, the use of the term "consensual" does not
depend upon the age of the victim; if it did, the statute would be
nonsensical. It means exactly as the definition in § 3251(3) provides.
(FN11)

¶ 51. The current statute carries forward the usage from the former
rape statutes, 13 V.S.A. §§ 3201 & 3202, now repealed. The statutory rape
provision, § 3201, criminalized sexual acts by a person over sixteen years
of age with a female under the age of sixteen "with or without her
consent." (FN12) The companion provision applicable to a defendant under
the age of sixteen years, § 3202, made it a misdemeanor to "carnally know"
a female under sixteen years of age "with her consent," and a felony if "by
force and against her will." At least as to a minor defendant under
sixteen years of age, the consent of the minor victim determined whether a
crime had been committed. The use of the term "consent" makes clear that
it means consent in fact without regard to her age.

¶ 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. 13 V.S.A. § 3252(c)(2) (2006). In doing so, the
Legislature again used the term "consensual" in a context that makes clear
it means consent in fact. Thus, under the amendment a fifteen year old is
capable of consenting to sexual activity with an eighteen year old, but in
the absence of such consent, the sexual activity is statutory rape. Again,
the Legislature used the exact term the majority is construing in a way
inconsistent with the majority's construction and in a statute that must be
read in pari materia with the statute the majority is construing. (FN13)

¶ 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 §
3253(a)(9). This conclusion is made particularly clear by the recent
amendment that makes the efficacy of consent dependent both on the age of
the victim and the age of the perpetrator.

¶ 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. (FN14)

¶ 55. The third inconsistency is with the provisions of § 3254, a
statute that provides guidance to determine whether there has been consent,
but again fails to mention that a minor cannot consent to a sexual act as
the majority holds. The majority's response to defendant's reliance on
this section is that "§ 3254 is not an exhaustive list of situations in
which lack of consent may be found." Deyo, 2006 VT 120, ¶ 24. I agree
that § 3254 is not exhaustive and is not intended to comprehensively
address the meaning of lack of consent. Id. The latter function is
assumed by the definition of consent in § 3251(3), which as discussed above
is wholly inconsistent with the majority's holding. The section is,
however, instructive.

¶ 56. In part, the section deals with the exact issue before us-the
capacity of the victim to consent. Thus, § 3254(2)(A) provides that the
defendant acted without consent where the defendant "[k]nows that the other
person is mentally incapable of understanding the nature of the sexual act
or lewd or lascivious conduct." There is no reason from the language why
the lack of mental capacity cannot be caused by young age. Thus, if the
majority's conclusion is correct, it is a glaring omission for the statute
not to state that the perpetrator's knowledge is irrelevant if the lack of
capacity is based upon young age and consent is impossible. (FN15) See
Hillhouse, 1 Cal. Rptr. 3d at 266-67 (emphasizing that the similar
California statute concerning mental incapacity nowhere indicates that the
victim must be an adult). Obviously, the statute relates to consent, in
fact, and not consent in law as would be required by the majority's
holding.

¶ 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, § 3252(a)(1)(A) and § 3252(a)(3), two of the statutes
quoted above, set forth the same crime so that a defendant cannot be
convicted under both. This is true primarily because the element of
consent required for a conviction under § 3252(a)(1)(A) is met as a matter
of law by the victim's age. Thus, the conclusion of Deyo that consent of a
minor is legally impossible is now extended to hold that the Legislature
improperly enacted two separate identical crimes and conviction of only one
is valid. What Hazelton really demonstrates is that the holding of Deyo is
wrong, and the crimes are separate.

¶ 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, 13 V.S.A. §
3252(a)(1)(A), and the statutory rape provision, id. § 3252(a)(3), do
define separate crimes.

¶ 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 § 3252(a)(1)(A)
means consent in fact as defined in § 3251(3). Thus, if an adult defendant
commits a consented-to sexual act with another person of age fifteen or
less, the defendant is guilty of statutory rape in violation of §
3252(a)(3). If the other person does not consent to the sexual act, and is
compelled to participate, defendant is also guilty of sexual assault under
§ 3252(a)(1)(A). For purposes of this crime, consent is determined by the
definition in § 3251(3) and not the age of the other person. In this case,
the Blockburger presumption is consistent with the plain meaning of the
language. Even if it were not, any ambiguity in the meaning of the
statutes should be resolved under the Blockburger presumption.

¶ 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 § 3252(a)(1). The
majority has read that word out of the statute, holding that each of the
alternative elements in § 3252(a)(1)(A), (B) and (C) are alternative
methods of compulsion. That may be a fair construction of (B) and (C)
because each of these elements involve an element of compulsion. It is not
a fair construction of (A), however, if the language means only that the
victim is under sixteen years of age, because the majority has read
compulsion out of the element. As the majority emphasizes, this is a
strict liability crime provable only by "a calendar and the person's birth
certificate." State v. Barlow, 160 Vt. 527, 530, 630 A.2d 1299, 1301
(1993); see Deyo, 2006 VT 120, ¶ 19. Thus, the Legislature's intent to
criminalize only compelled behavior is violated by the majority's
construction of § 3252(a)(1)(A).

¶ 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) (FN16) (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 Ore. Rev. Stat. §
163.315(1)(a) and stating that to avoid the statute the court would have to
"declare that [it] . . . simply does not mean what it says and cannot be
given the effect that it plainly describes"). Second, the majority relied
upon specific Oregon legislative history demonstrating that its
interpretation was the correct one. Id. at 178-79.

¶ 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 § 3252(a)(1)(A) and §
3252(a)(3) create the same crime when the victim is a minor.

¶ 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 § 3254, the Legislature has demonstrated that it
specifically intended to comprehensively define consent and its relevance
in criminal sexual assault cases. Nothing in these statutes provides any
evidence that its precise statutory definitions of consent would be
supplemented by a common law rule.

¶ 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. 13 V.S.A. § 3252(a)(4).
(FN17) "Plain error exists only in exceptional circumstances where a
failure to recognize error would result in a miscarriage of justice, or
where there is glaring error so grave and serious that it strikes at the
very heart of the defendant's constitutional rights." State v. Oscarson,
2004 VT 4, ¶ 27, 176 Vt. 176, 845 A.2d 337 (internal quotation marks and
citation omitted). The error here does not rise to that level. Thus, I
concur in the result in Deyo, but not in the reasoning the Court uses to
reach that result. I note, in fact, that the majority's construction of 13
V.S.A. § 3253(a)(9) is totally unnecessary given its holding that the child
could not consent to sexual acts with her father.

¶ 76. In Hazelton, the majority holds that defendant cannot be
convicted of both sexual assault under § 3252(a)(1)(A) and statutory rape
under § 3252(a)(3). I disagree. If the sexual act was nonconsensual in
fact, the age of the victim is irrelevant under § 3252(a)(1)(A). If the
victim is under sixteen years of age, defendant can also be convicted of
statutory rape, a separate offense. I dissent from the majority's holding
to the contrary.

¶ 77. I also note that even if I agreed with the majority in
Hazelton on the meaning of the word "consent" in § 3252(a)(1)(A), I would
still dissent from the holding. Although defendant did not acknowledge
this in his briefing, the trial court agreed with his position that the
offenses in § 3252(a)(1)(A) and § 3252(a)(3) are duplicative for the
reasons stated in the majority opinion. The difference, if any, was in the
remedy. After ruling in defendant's favor, the trial court held that the
duplicative nature of the charges only affected the total sentence that
could be imposed, such that the court could only impose two identical
concurrent sentences. This is an arguable position in light of our
language in State v. Grega, 168 Vt. 363, 388-89, 721 A.2d 445, 462-63
(1998), because this case does not involve lesser included offenses. After
winning on the substance of his argument, defendant failed to object to the
remedy the court adopted. Thus, defendant waived this issue.

¶ 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 §
3252(a)(1)(A) is clearly different from the offense in § 3252(a)(3) and
there are not duplicative convictions for the same conduct-in fact, one
conviction is based on the victim's age and the second conviction is based
on the lack of actual consent to the sexual act.

¶ 80. The third reason is the most important. The majority's
construction of § 3252(a)(1)(A) not only misreads the element of "consent"
in the case of a young victim, it totally eliminates the word "compels,"
which is an element of the offense. The logic of the majority opinion is
that the word "compels" adds nothing to "without . . . consent," so it is
superfluous. Thus it holds that despite the fact that the statute applies
only to a defendant who "compels" the victim to engage in a sexual act
without consent, "no actual . . . compulsion is necessary to commit the
offense." Hazelton, 2006 VT 121, ¶ 26. This holding defies every rule of
statutory construction. It totally ignores the plain meaning of the
statutory language, either in isolation or in context. See State v.
Eldredge, 2006 VT 80, ¶ 7, 17 Vt.L.Wk. 247 (stating that if plain meaning
of language is clear, we must enforce it). We reject a construction that
renders part of the statutory language superfluous, exactly the result of
the majority's construction. In re Margaret Susan P., 169 Vt. 252, 263,
733 A.2d 38, 47 (1999).

¶ 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

------------------------------------------------------------------------------
Footnotes

FN1. Defendant raised no objection to the jury instructions, and we express
no opinion on this particular instruction. We note, however, that this
instruction was consistent with the trial court's previous rulings-to which
defendant properly objected and preserved-on the admissibility of the prior
statements at issue for credibility purposes. In light of the court's
previous rulings allowing the testimony under objection for this purpose,
we doubt that an objection to the trial instruction would have made a
difference. Nonetheless, even though we do not review the instruction
itself for error, it is impossible to ignore the instruction in considering
the prejudicial effect of the erroneously admitted testimony because we
must consider the potential impact of the testimony on the jury.

FN2. This does not, as the dissent complains, post ¶ 63, ignore the Ritter
corollary to Blockburger, that "each subsection is presumed to define a
distinct crime." Ritter, 167 Vt.at 633, 714 A.2d at 625. The presumption
stands only until it is determined that the subsections actually define the
same crime. As explained, infra, when applied to a victim legally
incapable of consent, subsection 3252(a)(1)(A) defines the same sexual
assault as defined by subsection 3252(a)(3).

FN3. Originally R. 1787, p. 30.

FN4. After insisting that the Legislature recognizes consent to sexual
contact by children under the age for statutory rape, the dissent appears
to agree that such children could not capably consent to repeated sex with
a parent. This class of children legally incapable of consent appear
little different from other children who might be said to consent to
repeated sexual contact with other older relatives, acquaintances, or even
strangers. The spectacle of proving lack of "voluntariness,"as the dissent
understands this statutory scheme to require, post ¶ 64, from such
children who are often reticent or unlikely to testify effectively about
the time of year, let alone about volition, would not seem to be
contemplated by the Legislature absent an explicit declaration to that
effect.

FN5. Such clear expressions may be found in the recognition of consent for
married minors under § 3252(a)(3) at issue in this case, and in its newly
amended version explicitly extending consent to sexual contact between
persons aged fifteen to nineteen. 13 V.S.A. § 3252(c)(2), amended 2005, No.
192 (Adj. Sess), § 10.

FN6. The dissent misstates that our "view" of Wheat would require that the
prosecution "prove the elements of a non-crime." Post ¶ 59. This is not
a matter of viewpoint, but is exactly what Wheat said, wisely or not, due
process required when the particular indictment in that case failed to
inform defendant of the putative victim's age.

FN7. To the extent that our analysis requires any reconciliation with Wheat
and Sullivan, it would seem to be in the context of a charge of forcible
rape under § 3252(a)(1)(B). The state would be precluded from pleading the
age of a child as conclusive on the issue of coercion, and would bear the
burden of proving compulsion by force or threats in fact, rather than
incapacity to consent, beyond a reasonable doubt. Because the
complainant's age in the forcible rape case would be irrelevant, the
accused could, consistent with the due process concerns expressed in Wheat,
respond with evidence of consent to the specific charge of actual threat or
physical force.

FN8. Section 3252(a)(3), previously defining "statutory rape," was replaced
in 2006 with a new subsection (c) that maintained strict criminal liability
for sexual contact "with a child who is under the age of 16, except . . .
(2) where the person is less than 19 years old, the child is at least 15
years old, and the sexual act is consensual." 13 V.S.A. § 3252(c)(2)
(emphasis added).

FN9. The rule the majority constantly cites in Deyo-that a minor can't
"consent to sexual relations with an adult"-has never been the common law.
Putting aside whether the ability of a minor to "consent" is a statement of
the common law or a rationale for the crime of statutory rape, a subject
covered in detail infra in this dissent, the age element of statutory rape
has never been set by the common law as that under the age of majority, and
the age of the perpetrator did not matter under the common law. This
misstatement of the common law is an example of how the majority keeps
falling into "folk law" as its justification. See infra ¶ 54.

FN10. Again, I think it important to emphasize that this has never been the
common law.

FN11. The majority attempts to explain the marital exception by noting that
third parties must give consent to marry. Deyo, 2006 VT 120, ¶ 21 n.2.
The explanation is beside the point. I rely on the marital exception only
because it shows that when the Legislature uses the term "consent" and its
derivatives, it means consent in fact without importing a common law rule
on the ability of persons under a certain age to consent.

FN12. The majority in Hazelton points out that this language was in the
statute derived from England as part of the common law so it must, by
definition, be consistent with the common law principle. I cite it only
because it shows that when the Legislature uses the term "consent" and its
derivatives, it means consent in fact and that is the usage we must apply
to the statutes before us. The fact that the language came from the
English statute is irrelevant.

FN13. Again, the majority's attempt to explain the marital exception, Deyo,
2006 VT 120, ¶ 21 n.2, doesn't explain it. Nevertheless, I stand by my
point that the explanation is irrelevant.

FN14. The majority argues that Hillhouse is inapposite because the
California statutory scheme is different. Deyo, 2006 VT 120, ¶ 21. All
statutory schemes are different, but the difference between Vermont and
California does not undercut the comparison. The point of Hillhouse is
that general statements about a minor's capacity to consent to a sexual act
are only marginally helpful in interpreting a statute that does not refer
at all to a minor's capacity to consent. That point is precisely the
critical one here. On that point, the legislative direction in California
is no clearer than that in Vermont with its explicit definition of
"consent."

FN15. he Deyo and Hazelton opinions are inconsistent in their criticism of
this point. In Deyo the criticism is that § 3254(2) "simply" describes
some instances where the "actor is deemed to have acted without consent."
Deyo, 2006 VT 120, ¶ 24. In Hazelton, the criticism is that this dissent
has recreated a mistake defense although we have clearly held that no such
defense is available in State v. Searles, 159 Vt. 525, 527, 621 A.2d 1281,
1282-83 (1993). See Hazelton, 2006 VT 121, ¶ 30. Deyo is right that §
3254(2) describes instances where the defendant has acted without consent;
nothing in this dissent or the statute suggests that it creates or
amplifies defenses as charged in Hazelton. The charge that the dissent's
construction of the statute appears "to extend the defense of consent to
repeated sexual acts between an incestuous parent and an underage child,"
Hazelton, 2006 VT 121, ¶ 30, sounds more like a charge in a political
campaign than anything that could be remotely derived from the language of
the dissent. My point is that in describing an instance where lack of
consent is deemed to be present as a matter of law, the instance before us
in these cases, the Legislature has used language that means that consent
must be viewed as consent in fact. Hazelton offers no other interpretation
of the statutory language; indeed, no interpretation at all.

FN16. The majority in Deyo analyzes Tobias at length to show that it is
inapposite because it is based on a clear change of legislative direction
adopted in 1970 in California. 2006 VT 120, ¶ 22. In fact, Vermont went
through a comparable change of direction in 1977 when it repealed its rape
statutes and adopted the current sexual assault statutes. 1977, No. 51.
Vermont also went through a recent substantial modification of its
statutory scheme when it decoupled its sentencing provisions for statutory
rape from those for sexual assault generally. Again, I emphasize that use
of cases construing statutes from other jurisdictions must be done
carefully, but add that the similarities between the Vermont and California
schemes outweigh the differences.

FN17. Under the recent amendment, this provision is now § 3252(d).

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