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State v. Freeman

Supreme Court of Vermont

October 6, 2017

State of Vermont
v.
Kai A. Freeman

         On Appeal from Superior Court, Windham Unit, Criminal Division John P. Wesley, J.

          David W. Gartenstein, Windham County Deputy State's Attorney, Brattleboro, for Plaintiff-Appellee.

          Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Dooley, J. (Ret.), Specially Assigned.

         

          DOOLEY, J. (Ret.), Specially Assigned.

         ¶ 1. Defendant Kai Freeman appeals a jury verdict convicting him of ten separate charges. He argues on appeal that the trial court erred when it declined to sever the offenses charged against him. He also argues that the State did not present sufficient evidence upon which the jury could reasonably find him guilty of two of the charged offenses. We affirm.[1]

         ¶ 2. Defendant was charged with eleven offenses. The first five of these involved alleged offenses against thirteen-year-old A.H., including one count of sexual assault against a person under sixteen in violation of 13 V.S.A. § 3252(c); one count of repeated sexual assault as part of a common scheme or plan under 13 V.S.A. § 3253(a)(9); one count of lewd and lascivious conduct with a child in violation of 13 V.S.A. § 2602; one count of knowingly soliciting, luring, or enticing, or attempting to solicit, lure, or entice a child under 13 V.S.A. § 2828(a); and one count of contributing to the delinquency of a minor in violation of 13 V.S.A. § 1301. Each of these charges arose from an alleged series of incidents wherein defendant gave A.H. marijuana in exchange for oral sex or attempted to solicit A.H. to perform oral sex in exchange for marijuana.

         ¶ 3. Counts six and seven involved alleged offenses against thirteen-year-old K.S. These counts included one charge of sexual assault of a person under the age of sixteen in violation of 13 V.S.A. § 3252(c) and one charge of contributing to the delinquency of a minor in violation of 13 V.S.A. § 1301. As with the charges involving victim A.H., each of these arose from an alleged incident wherein defendant gave K.S. marijuana in exchange for oral sex.

         ¶ 4. Counts eight and nine arose from alleged offenses involving sixteen-year-old A.M. The first of these charged defendant with sexual assault in violation of 13 V.S.A. § 3252(a)(1), which provides that "[n]o person shall engage in a sexual act with another person and compel the other person to participate in a sexual act . . . without the consent of the other person . . . ." The second charged defendant with engaging in assignation in violation of 13 V.S.A. § 2632(a)(8).

         ¶ 5. Counts ten and eleven both alleged that defendant knowingly attempted to solicit, lure, or entice a child to engage in a sexual act in violation of 13 V.S.A. § 2828(a). The first of these charges involved fourteen-year-old A.L., while the second involved fourteen-year-old S.B. In each case, the State alleged that defendant attempted to trade marijuana for oral sex with the victim.

         ¶ 6. The alleged incidents involving victim A.M. occurred in the spring of 2013, during the same time period K.S. met defendant through A.M. The alleged incidents involving A.H., K.S., A.L., and S.B. occurred in the summer and fall of 2013. Each of the victims resided in the same town, and except for A.M., all attended the same middle school. A.H. and K.S. both had long friendships with A.M.; A.H., K.S., A.L., and S.B. were also part of the same friend group.

         ¶ 7. Following a jury trial, defendant was convicted of ten of these charges-including each charge involving victims A.H., K.S., A.L., and S.B. Defendant was also convicted of count nine, engaging in assignation. The jury did not convict defendant of nonconsensual sexual assault of A.M. This appeal followed.

         ¶ 8. Defendant raises two arguments on appeal. First, defendant argues that the trial court erred when it declined to sever offenses pertaining to A.M. from those related to other victims. Defendant also argues that the State failed to present sufficient evidence to enable the jury to find defendant guilty of two offenses pertaining to victim A.H. We address each of these arguments in turn.

         ¶ 9. The severance issue involves two rules of criminal procedure, V.R.Cr.P. 8 and V.R.Cr.P. 14. These rules establish the standards for joinder and severance of counts, each of which alleges an offense. Rule 8 provides that offenses may be joined in a single charging document if the offenses "(1) are of the same or similar character, even if not part of a single scheme or plan; or (2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." V.R.Cr.P. 8(a). Rule 14 provides a defendant with a right of severance upon a motion by prosecution or defense if offenses are joined simply because they have "the same or similar character" under Rule 8(a)(1). V.R.Cr.P. 14(b)(1)(A). The same right of severance does not obtain when offenses are joined for other reasons, such as because they constitute "parts of a single scheme or plan" under Rule 8(a)(2). In that instance, in order to successfully pursue a motion to sever, a defendant bears the burden of showing that ...


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