On Appeal from Superior Court, Chittenden Unit, Criminal Division Michael S. Kupersmith, J.
William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellant.
Brooks G. McArthur of Jarvis, McArthur & Williams, Burlington, for Defendant-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. The State appeals the dismissal of three counts of sexual exploitation of a minor, in violation of 13 V.S.A. § 3258. The charges were filed against defendant, a high school employee, based on her having engaged in sexual acts with a student over the summer break between defendant's school contracts. The issue is whether the circumstances of this case support the charges. We conclude that they do not, and affirm.
¶ 2. In reviewing the grant of a motion to dismiss, "we consider whether the evidence, taken in the light most favorable to the State, excluding modifying evidence, would fairly and reasonably tend to show defendant committed the offense, beyond a reasonable doubt." State v. Baron, 2004 VT 20, ¶ 2, 176 Vt. 314, 848 A.2d 275 (quotation omitted). The salient facts are not in dispute. Beginning in August 2012, defendant was employed by Chittenden South Supervisory Union (CSSU) for each of three consecutive years at Champlain Valley Union High School (CVU). During the 2012-2013 school year, she was employed as a paraeducator. During the 2013-2014 and 2014-2015 school years, defendant was employed as a program assistant. She worked with the putative victim, K.S., in a school program during the 2013-2014 school year. In May 2014, defendant's supervisors told her that she could no longer work with K.S. because of concerns that she was spending an inappropriate amount of time with him to the detriment of the other students in the program. K.S. was transferred to a different program, at which point defendant no longer had direct supervision over him.
¶ 3. During each of the years defendant worked at CVU, she was hired as a full-time "school-year employee" under the collective bargaining agreement. This classification meant that she was employed on a year-to-year basis, with the employment commencing two days before the students started school and ending one day after the last day of instruction, for a total of less than 200 days per year.
¶ 4. Initially, in May 2014, defendant was advised that her position at the school had been eliminated for the following year. Later that month, however, defendant received a letter stating that CSSU would be able to retain her services for the following school year. In response to the letter, defendant confirmed in writing her intent to work for CVU during the 2014-2015 school year.
¶ 5. At defendant's option, employment benefits were not extended to defendant beyond the 2013-2014 school year, except for certain benefits that did not require her to make premium payments. Defendant was not offered a summer position and thus was neither employed by CSSU nor given any supervisory role over students during the summer of 2014. On August 25, 2014, defendant resumed employment at CVU under a new contract with CSSU.
¶ 6. In February 2015, the State filed an information that, in relevant part, charged defendant with three counts of sexual exploitation of a minor, in violation of 13 V.S.A. § 3258(a), which provides as follows:
(a) No person shall engage in a sexual act with a minor if:
(1)the actor is at least 48 months older than the minor; and
(2) the actor is in a position of power, authority, or supervision over the minor by virtue of the actor's undertaking the responsibility, professionally or voluntarily, to provide for the health or welfare of minors, or guidance, leadership, ...