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State v. Hughs

Supreme Court of Vermont

July 27, 2018

State of Vermont
Randy Hughs

          On Appeal from Superior Court, Bennington Unit, Criminal Division William D. Cohen, J.

          David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          SKOGLUND, J.

         ¶ 1. Defendant Randy Hughs appeals his sentence to serve two and one half to five years for his conviction of sexual assault of a minor. He contends that the trial court erred by: (1) considering his decision to exercise his right to a trial in determining his sentence; (2) disregarding evidence that treatment in the community would be appropriate; and (3) failing to consider defendant's youth as a mitigating factor. We affirm.

         ¶ 2. On August 25, 2016, eighteen-year-old defendant had sexual intercourse with a fourteen-year-old minor, C.H., with whom he had been texting for the previous month and a half. The next day, defendant arranged to have a friend bring a "morning after" pill to C.H. When C.H.'s mother learned of the incident, she brought C.H. to the police station to file a complaint. At trial on November 4, 2016, a jury found defendant guilty of sexual assault of a minor under 13 V.S.A. § 3252(c).

         ¶ 3. At the sentencing hearing, a clinical psychologist testified for defendant. He noted that defendant scored a moderate-high rating under the actuarial risk-assessment measures taken by the Department of Corrections. The testifying psychologist observed that these actuarial tools have an approximately seventy-two to seventy-five percent success rate in predicting recidivism, which is significantly better than predictions made by clinicians alone. He further noted, however, that young individuals almost always score at least a moderate-low rating under this assessment scheme because it measures factors that are unlikely to be present for younger individuals, such as whether they have lived with a lover for at least two years, adding to their risk score.

         ¶ 4. The testifying psychologist discussed the importance of analyzing various "dynamic changeable factors," such as "protective factors" and "risk factors," to improve an actuarial study's predictive power for a particular individual. The testifying psychologist noted that a psycho-sexual evaluation conducted by another psychologist had found four such "protective factors" that decreased the defendant's risk level, including appropriate sexual interests and the absence of physical or mental barriers to treatment. However, the testifying psychologist could not say that defendant had no barriers to successful community treatment and noted that the evaluating psychologist had also found some risk factors during the assessment of defendant. Among these factors was "poor [sexual] risk management," though the testifying psychologist observed that the sexual risk management measure is significantly affected simply because defendant is not yet in treatment. He also acknowledged, as a second risk factor, that defendant had initially gone "through a period of not doing well under community supervision," with the qualification that defendant subsequently had been very cooperative during his time as an inmate.

         ¶ 5. The testifying psychologist also discussed several other considerations, including defendant's culpability-minimizing comments made during the prior assessment with the evaluating psychologist. Though defendant's mindset was "an issue," the testifying psychologist described it as "a pretty easy one in treatment." He also found defendant's initial denials to be "a treatment issue" that was likely resolvable. However, the testifying psychologist stated that he "wouldn't minimize" the fact that defendant had gone through four sessions with a professional to work on impulse-control and boundary issues as a thirteen-year-old only to make a bad decision five years later.

         ¶ 6. The testifying psychologist expressed concern that incarcerating a young defendant with older, more predatory, sex offenders could make defendant worse over the course of his incarceration. He agreed with the presentence investigation (PSI) that defendant would be "appropriate for community-based treatment" and "seems to be amenable to treatment." He discussed resources and safeguards available for treatment in the community. The testifying psychologist agreed that defendant would have access to a similar treatment program while incarcerated.

         ¶ 7. After the testifying psychologist's testimony, a victim's advocate read a statement prepared by C.H. describing the mental, physical, and emotional effects she had suffered because of the incident, such as bad grades at school, panic attacks, feeling unsafe at home, alienation from her parents and peers, and rumors at school.

         ¶ 8. After the conclusion of the testimony, the trial court sentenced defendant to serve two and one half to five years and outlined its reasoning from the bench. The court noted that "punishment is an essential component of this case for the purposes of the effect that it had, that it was easily avoidable, that it was unnecessary, it was impulsive . . . [defendant] was well aware of the fact of her age, and he had just previously turned eighteen."

         ¶ 9. The court considered the "need to accommodate the Department [of Corrections] in risk-reduction programming that's through the Department's programming regarding his risk assessments as outlined by [the testifying psychologist] and included in the reports." In addition to providing deterrence to the general public, the court noted that the sentence "gives appropriate deterrence" to defendant specifically, before observing that "[t]here's a rehabilitative program" developed by the Department of Corrections to help defendant ...

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