State v. Bellanger, No. 16–221

Docket NºNo. 16–221
Citation183 A.3d 550
Case DateFebruary 09, 2018
CourtUnited States State Supreme Court of Vermont

183 A.3d 550

STATE of Vermont
v.
Shawn BELLANGER

No. 16–221

Supreme Court of Vermont.

June Term, 2017
February 9, 2018


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

183 A.3d 556

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 years, 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

183 A.3d 557

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, 177 Vt. 513, 177 A.3d 513. In a recent decision this Court refined that rule, noting that most courts follow the either/or rule for multiple-acts cases1 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, 203 Vt. 1, 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, 446 Mich. 503, 521 N.W.2d 275, 279 (1994) ).

183 A.3d 558

¶ 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...

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11 practice notes
  • State v. Nelson, No. 2018-333
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 16 Octubre 2020
    ...52. Defendant did not preserve this argument, and we therefore review for plain error. State v. Bellanger, 2018 VT 13, ¶ 12, 206 Vt. 489, 183 A.3d 550 ("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 cl......
  • State v. Nelson, No. 18-333
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 16 Octubre 2020
    ...52. Defendant did not preserve this argument, and we therefore review for plain error. State v. Bellanger, 2018 VT 13, ¶ 12, 206 Vt. 489, 183 A.3d 550 ("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 cl......
  • State v. Nash, No. 18-286
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 25 Octubre 2019
    ...where an appellant raised the claim of error in a preserved-error framework. See, e.g., State v. Bellanger, 2018 VT 13, ¶ 12, 206 Vt. 489, 183 A.3d 550 ; State v. Bangoura, 2017 VT 53, ¶¶ 5-6, 205 Vt. 36, 171 A.3d 50 (noting that Court can review for plain error on its own motion); State v.......
  • State v. Nash, No. 2018-286
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 25 Octubre 2019
    ...where an appellant raised the claim of error in a preserved-error framework. See, e.g., State v. Bellanger, 2018 VT 13, ¶ 12, 206 Vt. 489, 183 A.3d 550; State v. Bangoura, 2017 VT 53, ¶¶ 5-6, 205 Vt. 36, 171 A.3d 50 (noting that court can review for plain error on its own motion); State v. ......
  • Request a trial to view additional results
11 cases
  • State v. Nelson, No. 2018-333
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 16 Octubre 2020
    ...52. Defendant did not preserve this argument, and we therefore review for plain error. State v. Bellanger, 2018 VT 13, ¶ 12, 206 Vt. 489, 183 A.3d 550 ("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 cl......
  • State v. Nelson, No. 18-333
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 16 Octubre 2020
    ...52. Defendant did not preserve this argument, and we therefore review for plain error. State v. Bellanger, 2018 VT 13, ¶ 12, 206 Vt. 489, 183 A.3d 550 ("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 cl......
  • State v. Nash, No. 18-286
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 25 Octubre 2019
    ...where an appellant raised the claim of error in a preserved-error framework. See, e.g., State v. Bellanger, 2018 VT 13, ¶ 12, 206 Vt. 489, 183 A.3d 550 ; State v. Bangoura, 2017 VT 53, ¶¶ 5-6, 205 Vt. 36, 171 A.3d 50 (noting that Court can review for plain error on its own motion); State v.......
  • State v. Nash, No. 2018-286
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 25 Octubre 2019
    ...where an appellant raised the claim of error in a preserved-error framework. See, e.g., State v. Bellanger, 2018 VT 13, ¶ 12, 206 Vt. 489, 183 A.3d 550; State v. Bangoura, 2017 VT 53, ¶¶ 5-6, 205 Vt. 36, 171 A.3d 50 (noting that court can review for plain error on its own motion); State v. ......
  • Request a trial to view additional results

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