State v. Caron
| Decision Date | 16 October 2020 |
| Docket Number | No. 2020-057,2020-057 |
| Citation | 2020 VT 96 |
| Court | Vermont Supreme Court |
| Parties | State of Vermont v. Robert E. Caron, Sr. |
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
On Appeal from Superior Court, Bennington Unit, Criminal Division
Alexander Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellee.
Allison N. Fulcher of Martin Delaney & Ricci Law Group, Barre, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Skoglund, J. (Ret.), Specially Assigned
¶ 1. EATON, J. Defendant appeals his conviction for sexual assault-no consent following a trial by jury. He argues the statute of limitations governing the sexual-assault charge against him had expired prior to the commencement of the prosecution, and thus the charge should be dismissed. We agree with defendant that his prosecution is barred by the statute of limitations and therefore vacate his conviction and sentence.
¶ 2. The factual and procedural background is as follows. In June 2018, complainant, then thirty-four years old, reported to the Bennington Police Department that she had been sexually assaulted by defendant when she was a child. Complainant had lived with defendant and his wife—a biological relative of complainant's—since her birth in November 1983.1 They adopted her when she was young. She had not reported any of the alleged sexual assaults involving the defendant to the police before June 2018.
¶ 3. The State initially charged defendant with aggravated sexual assault under 13 V.S.A. § 3253(a)(8), asserting that on or about November 5, 1987, defendant, who was then an adult, engaged in a sexual act with complainant, then under thirteen years old. Subsequently, the State amended the date of the offense as occurring between November 5, 1987, and November 5, 1990. Before trial, the State amended the date of the offense as occurring between November 5, 1987, and November 5, 1996—or between complainant's fourth and thirteenth birthdays. The original information and the amendments all charged the sexual offense under the 2018 version of the aggravated sexual assault statute, specifically, 13 V.S.A. § 3253(a)(8). See 2005, No. 192 (Adj. Sess.), § 10 (). A trial resulted in a hung jury and the declaration of a mistrial.
¶ 4. The State sought a second trial. Moments before it was to begin, in response to concerns raised by the court about the propriety of charging defendant under the current version of the aggravated sexual assault statute rather than the one in effect during the timeframe of the alleged sexual assault, the State amended the charge against the defendant from aggravated sexual assault to sexual assault-no consent, as that statute existed between 1987 and 1996. See 13 V.S.A. § 3252(a)(1). The amended charge alleged a compelled sexual act without the consent of the other person, to comport with the statutory language in effect at the time of the alleged occurrence. The information again alleged the incident happened between November 5, 1987, and November 5, 1996. Defendant raised no objection to the amendment, indicating "the defense is good withproceeding this way with this amendment." Neither the defendant nor the State raised any concerns about the statute of limitations at that time.
¶ 5. At the second trial, complainant described sexual assaults by defendant beginning when she was four or five years old as follows. These assaults involved defendant exposing himself to complainant, having her touch his penis, and having her perform oral sex on him. These incidents happened approximately three times when complainant was between four and eight years old. On one other occasion, when she was about seven, complainant remembered riding in a truck with defendant when he veered off course, and feeling a pain in her vagina, but she could not provide more details.
¶ 6. Defendant was convicted of the charged offense of sexual assault and subsequently sentenced to serve five to fifteen years in prison. This timely appeal followed. At no time during the trial court proceedings did defendant raise the issue of the statute of limitations barring this prosecution.
¶ 7. On appeal, defendant raises, for the first time, a claim that the statute of limitations bars the State from prosecuting him for this offense.2 Whether the application of the statute of limitations bars prosecution is a matter of statutory interpretation that we review de novo. In re Jones, 2009 VT 113, ¶ 5, 187 Vt. 1, 989 A.2d 482.
¶ 8. The statute of limitations for crimes is set forth in 13 V.S.A. § 4501. It is not disputed that during the timeframe of the sexual assault charged in the second trial, the statute of limitations was six years between 1987 and 1990, and was amended in 1990 to extend the limitations period to the earliest of when the victim reached age twenty-four or the date the victim first disclosed the incident to law enforcement. See 1987, No. 48, § 7; 1989, No. 292 (Adj. Sess.),§ 1. Nor is it disputed that complainant reached age twenty-four in November 2007, nearly eleven years before she first reported the incidents to law enforcement. In 2013, the statute of limitations was again amended to provide for a forty-year limitations period for sexual assault. 2013, No. 62, § 1. The State does not contest that the statute of limitations on sexual assault, even given the most favorable application to the State, expired for this charge well prior to the legislative extension of the statute in 2013.
¶ 9. The State also does not claim defendant has waived the statute of limitations by statutory process.3 Instead, the State argues defendant invited error by agreeing to the State's amendment of the information from aggravated sexual assault to sexual assault on the eve of the second trial. Because invited error, if it applied, would resolve this case, we consider the State's argument first. The State's argument lacks merit for several reasons.
¶ 10. Recently, in State v. Morse, we discussed the application of the invited-error doctrine, a form of waiver for which there is no standard of review. 2019 VT 58, ¶ 7, ___ Vt. ___, 219 A.3d 1309 (). There, we held that a party cannot induce an erroneous ruling from the trial court and then seek to profit from that ruling on appeal by arguing that it was error. The defendant in Morse agreed unequivocally at trial—and in the face of the State's constitutional concerns—to a jury instruction that statements and words alone were sufficient to support a conviction for disorderly conduct. Following her conviction, the defendant argued on appeal that the instruction was error. We held that a defendant may not inject error into the proceedings by advocating for one type of jury instruction and then attempt to "profit from the legal consequences" of the error by challenging the same instruction on appeal. Id. ¶ 7 (); see also State v. Smith, 2010 VT 15, ¶ 8 n.4, 187 Vt. 600, 992 A.2d 310 (mem.) (distinguishing "between invited error, which bars review where a party 'deliberately considers an issue and makes an intentional decision to forego it,' and plain error, which is subject to review when a party through neglect 'fails to make a proper objection' " (quoting United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir. 2009)).
¶ 11. The instant case is factually and legally distinguishable from Morse. The record reflects that the decision to amend the charge from aggravated sexual assault to sexual assault was made by the State after the court expressed concerns regarding the appropriate charging language to use. The record does not disclose—and the State does not allege—any involvement by defendant in raising those concerns or in selecting the amended charge.4 See State v. Rooney, 2011 VT 14, ¶ 30, 189 Vt. 306, 19 A.3d 92 (); State v. Shippee, 2003 VT 106, ¶ 7, 176 Vt. 542, 839 A.2d 566 (mem.) ("Where there are overlapping criminal offenses with which a defendant could be charged based on the facts, it is within the prosecutor's discretion to choose among them.").
¶ 12. Additionally, unlike in Morse, defendant here did not attempt to induce the court to take any action. In Morse, the defendant affirmatively stated a position on the correctness of a particular jury charge over the State's concerns to the contrary, and then cited those same concerns as a basis for reversal on appeal. Here, the record shows the State made its decision to amend, and announced it, without input from defendant, who merely agreed to proceed on the amended charge. At no time did either party or the court raise concerns about the statute of limitations. See State v.Alzaga, 2019 VT 75, ¶ 26, ___ Vt. ___, 221 A.3d 378 ().
¶ 13. Lastly, even if defendant was aware of the statute-of-limitations issue—a proposition for which there is no support in the record—the State has provided no authority for its apparent position that defendant was under some...
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