State v. Ritter

State v. Ritter  (96-288); 167 Vt. 632; 714 A.2d 624

[Filed 10-Apr-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 96-288

                             OCTOBER TERM, 1997


State of Vermont                }     APPEALED FROM:
                                }
                                }
     v.                         }     District Court of Vermont
                                }     Unit 1, Bennington Circuit
Aaron Ritter                    }
                                }     DOCKET NO. 1101-10-95BnCr

  In the above-entitled cause, the Clerk will enter:

       Defendant Aaron Ritter appeals his dual convictions of second-degree
  aggravated domestic assault (13 V.S.A. § 1044).  He argues that the trial
  court's decision permitting a single act that violates both § 1044(a)(1)
  and § 1044(a)(2) to be punished as separate crimes impermissibly infringes
  his right against double jeopardy.  We agree and vacate one of the two
  convictions and remand for re-sentencing.

       On the morning of October 8, 1995, defendant and his girlfriend had an
  argument. Angered that his girlfriend had been out late the previous night,
  defendant hit and kicked her while she was lying on a couch in the living
  room.  Defendant's sister stopped the fight and brought the victim to a
  relative's house, where she complained that her ribs hurt and exhibited
  symptoms consistent with rib injury.

       At the time of the attack, defendant was subject to a restraining
  order previously obtained by his girlfriend.  In addition, defendant had a
  prior conviction for domestic assault and was subject to a conditional
  release order, also preventing him from having contact with his girlfriend.

       Defendant was charged with numerous offenses arising out of the
  attack, including two counts of second-degree aggravated domestic assault. 
  Prior to trial, defendant moved to merge the two counts of second-degree
  aggravated domestic assault, arguing that they violated the rule against
  multiplicity and defendant's right against double jeopardy.  The State
  agreed that if the trial resulted in convictions under both counts, the
  convictions should merge.  The trial court granted defendant's motion,
  ordering that if the jury returned guilty verdicts on both charges the
  State would be required to elect between them.  Approximately one week
  later, however, the court announced that it had reconsidered its prior
  decision and concluded that it was permissible to convict defendant under
  both counts.

       Defendant was subsequently convicted of violating an abuse prevention
  order and two counts of second-degree aggravated domestic assault.  At the
  sentencing hearing both defendant and the State argued for the imposition
  of concurrent sentences for the two aggravated domestic assault convictions
  and the conviction for violating the abuse prevention order.  Nevertheless,
  the trial court imposed consecutive sentences on all three counts.

       Defendant argues that the trial court violated his right against
  double jeopardy by permitting his dual convictions of second-degree
  aggravated domestic assault.  The Double

 

  Jeopardy Clause provides that no person may "be subject for the same
  offense to be twice put in jeopardy of life or limb."  U.S. Const. amend.
  V.  This provision has been incorporated into the Fourteenth Amendment and
  applies to the states.  See Benton v. Maryland, 395 U.S. 784, 795 (1969).
  "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. Grega, No. 96-106, slip op. at 21
  (1998); accord Missouri v. Hunter, 459 U.S. 359, 367 (1983).  The
  Legislature may punish the same conduct under two or more statutory
  provisions, but its intent to do so must be clear.  See Grega, No. 96-106,
  slip op. at 21; Hunter, 459 U.S.  at 367.  When it is not, we apply as a
  rule of statutory construction the test first enunciated by the Supreme
  Court 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 the other does
  not."  Id.

       The proper inquiry in the instant case is whether the Legislature
  intended for a single act of domestic assault, committed under two separate
  aggravating circumstances, to be punished by two separate convictions of
  second-degree aggravated domestic assault.  The second-degree aggravated
  domestic assault statute provides that:

     A person commits the crime of second degree aggravated domestic
     assault if the person:

     (1) commits the crime of domestic assault and causes bodily injury
     to another person and such conduct violates specific conditions of
     a criminal court order in effect at the time of the offense imposed
     to protect that other person; or

     (2) commits a second or subsequent offense of domestic assault,
     which causes bodily injury.

  13 V.S.A. § 1044(a).

       The statute does not specifically provide for cumulative punishment. 
  Nevertheless, each offense requires proof of a fact that the other does
  not.  Second-degree aggravated domestic assault under § 1044(a)(1) requires
  proof that the domestic assault violates an order of protection, while §
  1044(a)(2) requires proof of a prior conviction for domestic assault.  The
  offenses are not the same under the Blockburger test.  Therefore, the
  Legislature is presumed to have authorized cumulative punishment under the
  two statutory subsections because each subsection is presumed to define a
  distinct crime.

      "The Blockburger presumption may be overcome, however, by a 'clear
  indication of contrary legislative intent.'"   Grega, No. 96-106, slip op.
  at 24 (quoting Albernaz v. United States, 450 U.S. 333, 340 (1981)). 
  Defendant argues that the Blockburger presumption is overcome in this case
  because construing the subsections of § 1044(a) as defining separate
  offenses would lead to absurd results that could not have been intended by
  the Legislature.  We agree.

       The aggravating factors in § 1044(a) allow courts to impose a greater
  penalty when the underlying crime of domestic assault is committed.  Thus,
  domestic assault committed under one of the two enumerated aggravating
  circumstances becomes second-degree aggravated domestic assault and the
  maximum authorized punishment is significantly more severe than domestic

 

  assault under § 1042.  The maximum penalty increases from imprisonment of
  not more than one year and a $5,000 fine for domestic assault, § 1042, to
  imprisonment of not more than five years and a $10,000 fine for
  second-degree aggravated domestic assault, § 1044(b).

       Defendant in the instant case did not commit multiple acts of domestic
  assault involving separate occurrences or separate victims.  Absent the
  aggravating factors, defendant's unitary act against a single victim could
  support only a single conviction of domestic assault.  Because defendant's
  unitary act occurred under aggravating circumstances, it is punishable as
  second-degree aggravated domestic assault rather than domestic assault. 
  We do not agree, however, that because the domestic assault occurred under
  two aggravating circumstances, it suddenly becomes punishable as two counts
  of second degree aggravated domestic assault, permitting an additional
  sentence of up to five years imprisonment and up to a $10,000 fine.

       We also note that there is substantial overlap between the aggravating
  factors.  A person with a prior conviction for domestic assault may very
  well be subject to an order of protection preventing future abuse.  It
  therefore seems likely that in a substantial number of cases, a person
  committing a subsequent domestic assault would fall under both subsections
  of § 1044.  We do not believe that the Legislature intended to authorize
  separate sentences under such circumstances.  We conclude, therefore, that
  § 1044(a)(1) and (2) define alternative ways of committing second-degree
  aggravated domestic assault, rather than creating two separate offenses. 
  Cf. State v. Nash, 144 Vt. 427, 433, 479 A.2d 757, 760 (1984) (13 V.S.A. §
  3252(a)(1)(A), (B), and (C) are not separate crimes; they are separate ways
  by which a single offense may be committed.); State v. Matthews, 42 Vt.
  542, 545-46 (1870) (alternative modes of violating statute set out in the
  same statutory paragraph, did not create separate offenses).

       One of defendant's convictions for second-degree aggravated domestic
  assault vacated, the other conviction affirmed, and the matter remanded for
  re-sentencing.



                              BY THE COURT:



                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn S. Skoglund, Associate Justice