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State v. Bellanger

Supreme Court of Vermont

February 9, 2018

State of Vermont
Shawn Bellanger

         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, ...

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