Appeal from Superior Court, Windham Unit, Criminal Division
John P. Wesley, J.
W. Gartenstein, Windham County Deputy State's Attorney,
Brattleboro, for Plaintiff-Appellee.
Allison N. Fulcher of Martin & Associates, Barre, for
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
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
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
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