On
Appeal from Superior Court, Bennington Unit, Criminal
Division David A. Howard, J.
David
Tartter, Deputy State's Attorney, Montpelier, for
Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Rebecca Turner,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
JJ.
CARROLL, J.
¶
1. Defendant Shawn Bellanger appeals a jury verdict finding
him guilty of aggravated sexual assault of a child under 13
V.S.A. § 3253a(a)(8) and lewd or lascivious conduct with
a child under 13 V.S.A. § 2602. On appeal, defendant
raises arguments related to the jury instructions, the
sufficiency of the State's evidence, and the
prosecutor's closing argument. We affirm.
¶
2. Defendant and victim D.H.'s mother lived together for
approximately eighteen months. Approximately one month after
the two separated and ceased contact, D.H. disclosed to her
mother that defendant had forced her to perform oral sex on
him. During an interview with police following this
disclosure, D.H. stated that defendant had, on several
separate occasions, forced her to perform oral sex; she also
described defendant having both digital and oral contact with
her vulva. D.H. was between nine and ten years old at the
time of these incidents.
¶
3. The State subsequently charged defendant with five
offenses: (1) aggravated sexual assault on a victim under age
thirteen in violation of 13 V.S.A. § 3253(a)(8); (2)
aggravated sexual assault repeated in violation of 13 V.S.A.
§ 3253(a)(9); (3) aggravated sexual assault of a child
repeated in violation of 13 V.S.A. § 3253a(a)(8); (4)
lewd or lascivious conduct with a child in violation of 13
V.S.A. § 2602(a)(1); and (5) voyeurism in violation of
13 V.S.A. § 2605(b)(1). The State dismissed the first
two counts on the day of trial, and proceeded with only the
three latter charges. Under 13 V.S.A. § 3253a(a)(8),
aggravated sexual assault of a child occurs when a person
over eighteen subjects a victim under sixteen to
"repeated nonconsensual sexual acts" as either
"part of the same occurrence" or "part of the
actor's common scheme and plan." Section 2602(a)(1)
prohibits "commit[ting] any lewd or lascivious act upon
or with the body, or any part or member thereof, of a child
under the age of 16, with the intent of arousing, appealing
to, or gratifying the lust, passions, or sexual desires of
[the actor] or of such child." Section 2605(b)(1)
prohibits intentionally viewing or recording "the
intimate areas of another person without that person's
knowledge and consent."
¶
4. During defendant's trial, the jury heard testimony
from D.H.'s mother describing D.H.'s initial
disclosure and from D.H. regarding the incidents alleged.
D.H. testified that defendant had sexual contact with her
"[m]ore than one time." She testified that
defendant "put his private in [her] mouth" in
"certain places, " namely in the bathroom, in
D.H.'s mother's room, and in D.H.'s mother's
closet. She also described incidents wherein defendant had
tongue-to-vulva contact with her, and both finger-to-vulva
contact and penis-to-vulva contact with her. D.H. disclosed
this last incident for the first time at trial-she had not
previously disclosed this incident to her mother or to law
enforcement investigators.
¶
5. The jury convicted defendant of both aggravated sexual
assault of a child under 13 V.S.A. § 3253a(a)(8) and
lewd or lascivious conduct with a child under 13 V.S.A.
§ 2602. Defendant was acquitted of the last charged
offense, voyeurism. Following the guilty verdicts, defendant
was given an aggregate sentence of imprisonment of
twenty-seven years to life. This appeal followed.
¶
6. Defendant outlines four separate arguments-two related to
the court's jury instructions, a third related to the
sufficiency of the State's evidence on one element of the
aggravated sexual assault charge, and a fourth related to the
prosecutor's closing argument. Defendant's first and
final arguments can be addressed as distinct claims of error,
but defendant's second and third arguments must be
addressed together.
I. The
Unanimity Instruction
¶
7. We begin with defendant's first argument related to
the jury instructions: that the trial court's unanimity
instruction did not instruct the jury that to convict
defendant for aggravated sexual assault of a child under 13
V.S.A. § 3253a(a)(8), the jurors must agree not only
that two or more instances of sexual contact occurred between
defendant and the victim but also must agree as to which
specific acts occurred. As mentioned above, §
3253a(a)(8) requires the State to prove-and the jury to
find-"[t]he 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." (Emphases added.)
Thus, conviction under § 3253a(a)(8) is predicated on at
least two acts, either as part of one continuous occurrence
or as part of the defendant's common scheme and plan.
¶
8. We review jury instructions not in isolation but as a
whole. State v. Levitt, 2016 VT 60, ¶ 13, 202
Vt. 193, 148 A.3d 204; State v. Herrick, 2011 VT 94,
¶ 18, 190 Vt. 292, 30 A.3d 1285. In this case, the trial
court instructed jurors as follows:
For a guilty verdict on this count, you must all agree to
more than one of the described sexual acts happening. You can
all agree to more than two, but you must all agree to at
least more than one. You may find more than one act of
different types occurred or more than one of the same type of
act occurred.
The
court defined a sexual act as conduct "consisting of
contact between the penis and vulva, the penis and anus, the
mouth and penis, the mouth and vulva, or any intrusion,
however slight, by any part of a person's body or any
object, into the genital or anal opening of another."
Defendant argues that this instruction required jurors to
unanimously agree that at least two sexual acts occurred, but
did not require jurors to unanimously agree on which specific
acts formed a factual basis for conviction under §
3253a(a)(8). The court gave no other instruction regarding
unanimity related to the charge for aggravated sexual assault
of a child. On this basis, defendant argues that jurors could
have misunderstood the unanimity requirement and not agreed
on the separate acts, resulting in a conviction without
specific unanimity.
¶
9. The Vermont Constitution requires that a criminal
conviction will follow from only a unanimous verdict. Vt.
Const. Ch. I, art. 10 ("[I]n all prosecutions for
criminal offenses, a person hath a right to . . . a speedy
public trial by an impartial jury . . . without the unanimous
consent of which jury, the person cannot be found guilty . .
. ."); see also V.R.Cr.P. 31(a) ("The verdict shall
be unanimous."). To meet the unanimity rule, Vermont
practice has generally required that "where there is
evidence of more than one act that would constitute the
offense charged, the State must specify the act for which it
seeks a conviction." State v. Gilman, 158 Vt.
210, 215, 608 A.2d 660, 664 (1992); see also State v.
Bailey, 144 Vt. 86, 98, 475 A.2d 1045, 1052 (1984),
abrogated on other grounds by State v. Manning, 2017
VT 90, __Vt.__, __ A.3d__. In a recent decision this Court
refined that rule, noting that most courts follow the
either/or rule for multiple-acts cases[1]such as this one,
which "requires either the election of a single act as a
basis for the charged offense or an instruction requiring the
jury to be unanimous in determining which act supports a
conviction." State v. Nicholas, 2016 VT 92,
¶ 22, __Vt.__, 151 A.3d 799. Under this rule as
explained in Nicholas, a specific unanimity
instruction is still not always necessary. See id.
¶¶ 23- 26. "The critical inquiry is whether
either party has presented evidence that materially
distinguishes any of the alleged multiple acts from the
others." Id. ¶ 23 (quoting People v.
Cooks, 521 N.W.2d 275, 279 (Mich. 1994)).
¶
10. In essence, defendant argues that this case falls within
the Nicholas rule-that the State's evidence
materially distinguished between the several bad acts alleged
and that, therefore, a specific unanimity instruction was
necessary.[2] On this point, we agree with defendant.
The State presented evidence from which the jury could have
found multiple separate instances of sexual contact between
defendant and D.H. D.H. testified that defendant had sexual
contact with her more than once. She described four kinds of
contact; including mouth-to-penis, mouth-to-vulva,
finger-to-vulva, and vaginal penetration. She described at
least three separate incidents involving these four kinds of
contact in great detail: one involving penis-to-mouth
contact, a second involving mouth-to-vulva contact, and a
third involving both finger-to-vulva contact and attempted
vaginal penetration. For each of these occurrences, she
described the location of the incident and the sequence of
events, including details regarding defendant's specific
actions during each incident. The locations of the instances
varied, with separate instances of contact occurring in
D.H.'s mother's room, her mother's closet, and
the home's bathroom. D.H. also testified that some of the
types of sexual contact described occurred on other occasions
as well.
¶
11. This is not a case in which "generic" evidence
was presented of a multitude of more or less
indistinguishable acts of sexual abuse over a period of time.
See People v. Jones, 792 P.2d 643, 650 (Cal. 1990)
(en banc) (noting that election or instruction "can help
focus the jury on the same specific act where evidence of
several distinct acts has been elicited, " but
"neither an election nor a unanimity instruction is very
helpful where the victim is unable to distinguish between a
series of acts, any one of which could constitute the charged
offense.").[3] The State argues that the evidence
presented was not materially distinguishable for purposes of
the Nicholas rule because the pattern of
circumstances surrounding each incident was similar or the
same. For example, D.H. testified that each incident occurred
when defendant was responsible for caring for her and her
siblings, and that the incidents occurred after defendant
messaged D.H. through his phone to tell her to go to the
home's second floor. We do not disagree that the external
circumstances of each incident followed the same pattern, but
Nicholas's reference to materially
indistinguishable evidence is not directed at the
externalities of an alleged offense but, instead, the alleged
offense itself. See State v. Voyles, 160 P.3d 794,
800 (Kan. 2007) (holding case involved multiple acts because
charged conduct included offenses occurring at different
times and different locations, "demonstrating acts which
are separate and distinct from each other, " despite
similarity in defendant's pattern of conduct before and
after offenses and sameness of sexual acts involved). Thus,
because the State's evidence, in the form of D.H.'s
testimony, distinguished between the details of various
isolated incidents of sexual contact, the evidence was
sufficiently materially distinguishable to enable jurors to
isolate the specific instances of sexual contact that they
found formed the factual basis for aggravated sexual assault
of a child. Furthermore, the State did not elect which of the
alleged acts should serve as a basis for the violation of
§ 3253a(a)(8). Thus, in this case, under
Nicholas, a specific unanimity instruction should
have been given to ensure that the jury as a whole convicted
based on the same two or more acts. But this is not the end
of our inquiry. Having found error in the omission of a
specific unanimity instruction, we next consider whether this
error rises to the level of reversible error on the facts of
this case. We conclude that it does not.
¶
12. Defendant argues that an objection to the jury
instructions was properly preserved and that our review
should proceed under the harmless error standard. The State
disputes this argument, advocating instead for plain error
review because any objection was not specific to the
unanimity question presented on appeal. The appropriate
standard in this case is plain error. In order to preserve an
objection to a jury instruction, a defendant must not only
object to the instruction with specificity in the charge
conference but also must renew that objection "before
the jury retires to consider its verdict, stating distinctly
the matter to which objection is made and the ground of the
objection." V.R.Cr.P. 30(b); see also State v.
Hinchliffe, 2009 VT 111, ¶ 33, 186 Vt. 487, 987
A.2d 988 (noting purpose of V.R.Cr.P. 30 is "to give the
trial court one last opportunity to avoid an error"
(quotation omitted)). When an objection to a jury instruction
is unpreserved-and the trial court has not had its due
opportunity to avoid error-we review the claim on appeal for
plain error. Levitt, 2016 VT 60, ¶ 6.
¶
13. In the charge conference in this case, defendant, the
State, and the court discussed revising the jury instructions
to ensure that jurors understood that they must agree that at
least two acts occurred in order to convict for aggravated
sexual assault under 13 V.S.A. § 3253a(a)(8). They also
discussed ways of ensuring that jurors understood that they
need not base conviction on two different types of conduct,
but could convict if they found two or more instances of the
same kind of conduct, including the possibility of using a
jury verdict form enabling jurors to check off the instances
of sexual contact they found occurred. The trial court edited
the original draft jury instructions to clarify that the
jurors must agree that at least two separate acts had
occurred, though they could also agree on the occurrence of
more than two acts. The court did not give jurors a verdict
form. Nor, as explained above, did the court instruct jurors
that they must agree as to which specific acts formed the
factual basis for conviction of aggravated sexual assault.
Following the trial court's reading of the instructions
to the jury, defendant made a few specific objections to some
portions of the instructions and then stated that he was
relying on his prior arguments regarding other earlier
objections. Defendant did not make a specific objection to
the court's failure to instruct the jurors that they were
required to be unanimous on the particular acts forming a
factual basis for conviction.
¶
14. Even if defendant's objection to the jury instruction
during the charge conference could be considered an objection
on the ground that a specific unanimity instruction was
needed, the trial court's final instruction clearly did
not reflect the court's understanding of that objection.
Given that the purpose of preservation's requirement for
specific post-charge objections is to give the trial court
its due "one last opportunity to avoid an error, "
we cannot say that defendant's blanket renewal was
sufficient under these circumstances to allow the court a
chance to correct remaining defects in the instructions.
Hinchcliffe, 2009 VT 111, ¶ 33 (quotation
omitted).[4] Put simply, the omission of a specific
unanimity instruction indicates that the trial court did not
understand defendant's argument in the charge conference
to be predicated on the need for such an instruction. For
this reason, defendant needed to clearly notify the trial
court that a specific unanimity instruction was required so
that the trial court could then take any necessary reparative
action. Because defendant did not give the trial court a
final opportunity to correct its mistake, defendant's
objection is unpreserved and our review is for plain error.
V.R.Cr.P. 52(b) ("Plain errors or defects affecting
substantial rights may be noticed although they were not
brought to the attention of the court.").
¶
15. A plain error review of jury instructions requires us to
"examine the instructions in light of the record
evidence as a whole" and decide whether the error
defendant raises "would result in a miscarriage of
justice." Herrick, 2011 VT 94, ¶ 18. This
inquiry involves four questions: whether there is error,
whether that error is obvious, whether that error affects a
defendant's substantial rights and has led to prejudice,
and whether that error "seriously affects the fairness,
integrity, or public reputation of judicial
proceedings." Id. In other words, to find plain
error, "there must be a reasonable probability
that the error affected the outcome of the trial."
United States v. Marcus, 560 U.S. 258, 262 (2010)
(emphasis added). An error is reasonably likely to have
affected the outcome of a trial when it is reasonably likely
that some jurors could have found that some of the alleged
acts occurred and other jurors could have found that other of
the alleged acts occurred. See, e.g., In re Carter,
2004 VT 21, ¶ 24, 176 Vt. 322, 848 A.2d 281 ("To
demonstrate prejudice, petitioner would need to show that it
was likely that some jurors found that there were threats to
the victim but not to her family while other jurors found
just the opposite."). Defendant bears the burden of
demonstrating that there was more than just a "logical
possibility" that the jury differed on the factual basis
underlying defendant's aggravated sexual assault of a
child conviction-the likelihood of a nonunanimous verdict
must be "reasonable." See Nicholas, 2016
VT 92, ¶ 26 (quotation omitted).
¶
16. As we have explained before, this is "a very high
bar." Herrick, 2011 VT 94, ¶ 18. Defendant
has not reached that bar in this case. Put simply, while
there is a possibility that jurors differed on the factual
basis for defendant's conviction, it is neither logically
nor reasonably likely that the jurors would have reached a
different verdict had the trial court given a specific
unanimity instruction.
¶
17. In short, defendant has not demonstrated that the lack of
a specific unanimity instruction gave rise to any prejudice.
Our reasoning on this point rests on the defense presented
below. During the charge conference, defense counsel conceded
that the defense was "all or nothing." He went on
to state that jurors were either "going to believe the
child or they're not. If they believe the child, I
can't see them not believing all the acts." While
the State presented testimony from D.H.'s mother and the
investigating officer, the State's case centered on
D.H.'s testimony concerning the offenses defendant
allegedly committed. The State presented no extrinsic
evidence to accompany this testimony. Therefore, the
jury's verdict could have rested only on its
determination as to D.H.'s credibility-and, given the
jury's verdicts convicting defendant, the jurors likely
found D.H. credible.
¶
18. Courts in several states have held that where a defendant
presents a blanket defense, which relies on undermining
witness credibility and arguing that none of the alleged acts
occurred, a different verdict is "even if a logical
possibility, not a reasonable possibility."
Nicholas, 2016 VT 92, ¶ 26 (quotation omitted)
(collecting cases). Where the defense raises only a single
issue- witness credibility-and the jury convicts despite this
defense, then it is reasonable to conclude that jurors
believed all of the witness's testimony and their verdict
would not have been different even if a specific unanimity
instruction was given. Compare State v. Hill, 26
P.3d 1267, 1275 (Kan. 2001) ("By the jury's
rejection of [defendant's] general denial, we can
unequivocally say there was no rational basis by which the
jury could have found that [defendant] committed one rape but
did not commit the other."), abrogated on other
grounds by Voyles, 160 P.3d at 794, with
Celis-Garcia, 344 S.W.3d at 159 (granting new trial
in multiple acts case where court did not give specific
unanimity instruction and defendant "relied on
evidentiary inconsistencies and factual improbabilities
respecting each specific allegation of hand-to-genital
contact [which] makes it more likely that individual jurors
convicted [defendant] on the basis of different acts").
Therefore, we conclude that in this case, though omission of
a specific unanimity instruction was error, it was not
reversible error. The defense did not distinguish between the
multiple alleged acts, relied solely on undermining
D.H.'s credibility in a general way, and jurors were
therefore not reasonably likely to reach a different verdict
had a specific unanimity instruction been correctly given.
II. The
Nonconsent Instruction and the Sufficiency of the State's
Evidence
¶
19. We turn now to defendant's next arguments: (1) that
the trial court erred by instructing jurors they could
presume nonconsent on the basis of D.H.'s age at the time
of the alleged offenses; and (2) that the State failed to
present sufficient evidence on a necessary element of §
3253a(a)(8)-namely, that defendant and D.H. were not married
to each other. Resolution of these two arguments is comingled
and begins with recounting the initial charge against
defendant and the way that charge was presented to the jury.
¶
20. First, § 3253a(a) states that "[a] person
commits the crime of aggravated sexual assault of a child if
the actor is at least 18 years of age and commits sexual
assault against a child under the age of 16 in violation of
section 3252" of Title 13 and one aggravating factor is
present. Thus, for conviction under § 3253a the State
must prove each element of that statute, including an
aggravating factor, and also must satisfy the elements
necessary for conviction under § 3252. Section 3252,
...