State v. Carrolton

• Citation: 2011 VT 131,39 A.3d 705
• Decision Date: 02 December 2011
• Docket Number: No. 10–441.,10–441.
• Parties: STATE of Vermont v. Bruce CARROLTON.
• Court: United States State Supreme Court of Vermont

2011 VT 131

39 A.3d 705

STATE of Vermont

v.Bruce CARROLTON.

No. 10–441.

Supreme Court of Vermont.

Dec. 2, 2011.

Christina Rainville and Robert V. Simpson, Jr., Bennington County Deputy State's Attorneys, Bennington, for Plaintiff–Appellant.

Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, Rebecca N. Turner, Appellate Defender, and Katie Polonsky, Law Clerk (On the Brief), Montpelier, for Defendant–Appellee.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

JOHNSON, J.

¶ 1. The State appeals from an interlocutory order of the criminal division of the superior court granting defendant's motion to merge into a single count the two counts of lewd and lascivious conduct charged by the State. Relying on State v. Perrillo, 162 Vt. 566, 649 A.2d 1031 (1994), which involved facts very similar to this case, the trial court ruled that because the alleged offensive touching occurred continuously without any intervening act over a short period of time, the State could not charge defendant with multiple counts of lewd and lascivious conduct. Recognizing that our holding in Perrillo governs this case, the State on appeal asks this Court to overrule Perrillo and hold that the touching of two distinct intimate parts of the body are two separate offenses as a matter of law. We decline to overrule Perrillo and, accordingly, affirm the trial court's decision.

¶ 2. In February 2010, the State charged defendant with two counts of lewd and lascivious conduct, in violation of 13 V.S.A. § 2601, based on facts alleged by the sixteen-year-old complainant, who testified in a deposition that defendant rubbed her back, stomach, breasts, and vaginal area while she was lying in bed. Defendant filed a motion to dismiss one of the counts, relying on Perrillo. The trial court granted the motion and gave the State ten days to merge the allegations into one count. In so ruling, the court found that the alleged lewd acts “were essentially continuous and done in a very short amount of time and in the same location.” The court further found that the “touching progressed continually from her back to her breast area and then to her vaginal area” and “was clearly not interrupted by any break in time or intervening event.” The court then granted the State's motion for an interlocutory appeal, as permitted under 13 V.S.A. § 7403(b) (allowing State in felony prosecution to appeal dismissal of indictment or information as to one or more counts).

¶ 3. On appeal, the State does not challenge the court's findings concerning the nature of defendant's conduct. Rather, as noted, the State argues only that Perrillo should be overruled because touching two distinct intimate body parts—the breasts and vaginal area—should be considered separate crimes as a matter of law. In support of this argument, the State contends that Perrillo misread the major case it relied upon and has since been undercut by our later decisions and the “strong trend” in other jurisdictions. According to the State, from the perspective of victims, defendants, and the public in general, offensive touching of two distinct intimate body parts amounts to separate actions with separate effects warranting separate punishment.

¶ 4. Before addressing the specifics of the State's arguments, we note that they are overstated, at best. There is no strong trend to treat the touching of distinct intimate body parts as separate crimes as a matter of law; indeed, there is no trend at all in that direction. Moreover, this Court has not backtracked from Perrillo since it was decided seventeen years ago. To the contrary, in citing and discussing Perrillo in later cases involving multiple counts of sexual offenses, this Court has at times distinguished the facts of Perrillo but has never wavered from its holding.

¶ 5. In Perrillo, the defendant was charged with and convicted of two counts of lewd and lascivious conduct with a child, in violation of 13 V.S.A. § 2602, which provides a maximum penalty of five years. Similarly to complainant's testimony in the instant case, the complainant in Perrillo testified that over the course of “a few minutes or so” the defendant first rubbed her stomach and then went up to the chest area before moving down into her pants. 162 Vt. at 567, 649 A.2d at 1032. The defendant was convicted on both counts and sentenced to two-and-one-half years to five years on each count. The defendant argued that the evidence supported a conviction on no more than one count of the offense and that his sentence effectively doubled the penalty set in the statute by the Legislature.

¶ 6. We agreed. Citing Harrell v. State, 88 Wis.2d 546, 277 N.W.2d 462, 473 (Ct.App.1979), for the proposition that an episode of sexually assaultive behavior usually involves multiple invasions of the victim's intimate body parts, we doubted a legislative intent in § 2602 “to increase the potential sentence for these crimes exponentially depending on the number of touches involved in a single episode of sexual abuse.” Perrillo, 162 Vt. at 567–68, 649 A.2d at 1032. We noted that the sexual abuse prohibited by § 2602 is an aggravated form of battery, and that in battery cases, multiple blows during a single attack can generally be prosecuted only as a single offense. Id. at 568, 649 A.2d at 1032. We pointed out that, under the State's view, the victim's ability to remember details of the sexual contact would be the only limit on the number of counts that could be brought in a case, which would make it impossible to reasonably define the distinction between the potential for enough and too much punishment under the statute. Id. at 568, 649 A.2d at 1033.

¶ 7. The facts in Perrillo are nearly identical to the facts of this case, and the reasoning in Perrillo applies equally to § 2601 and § 2602 of Title 13. Therefore, if Perrillo remains good law, the State cannot prevail in this appeal. The State does not argue otherwise.

¶ 8. The State argues, however, that Perrillo misconstrued Harrell, and that since we issued Perrillo, we have backed away from its holding. Neither contention is accurate. The court in Harrell ruled that the defendant was properly convicted on two counts of sexual assault against a single victim, where he had forcible, nonconsensual sexual intercourse with the victim on two separate occasions separated by approximately twenty to twenty-five minutes. 277 N.W.2d at 464, 471. The court set forth factors to consider in determining whether multiple counts were legally justified—including the nature of the act. Id. at 472–73. In discussing those factors, the court noted that an episode of sexually assaultive behavior usually involves multiple invasions of the victim's body. Id. at 473. The Harrell court followed this observation by stating that “[w]hether such invasions are a single offense or separate offenses can sometimes be placed in perspective by the time interval between specific acts.” Id. (“Of all the identifiable elements and factors, the question of time more than any other circumstance seems to permeate all of the factors.”). We recognize that Harrell also included dicta opining that the invasion of different intimate body parts should be viewed as different acts, see id.; however, in Perrillo, we cited Harrell only for the proposition—expressly stated in that case—that a single episode of sexual contact usually involves multiple invasions of the victim's intimate body parts. 162 Vt. at 567–68, 649 A.2d at 1032. We did not misconstrue Harrell.

¶ 9. In support of its claim that we have moved away from our holding in Perrillo since issuing the decision, the State first relies upon State v. Fuller, 168 Vt. 396, 721 A.2d 475 (1998). In Fuller, the defendant was convicted of aggravated sexual assault under 13 V.S.A. § 3253(a)(9), which prohibits “repeated nonconsensual sexual acts as part of the same occurrence or ... as part of the actor's common scheme and plan.” The conviction was based on evidence demonstrating that the defendant forcibly engaged his stepson in oral sex in a bedroom of their home; the boy got away from him and ran into the living room; and then the defendant followed the boy into the living room, subdued him, and again forced oral sex upon him. The defendant argued that he could not be convicted of violating § 3253(a)(9) because his conduct amounted to one, continuous, brief episode of sexual contact. We disagreed, noting that the boy's escape into another room between the sexual assaults was “an intervening event” that gave the defendant “sufficient time between the commission of the two acts to reflect upon what he was doing and to recommit himself to sexually assaulting the child that had escaped.” Fuller, 168 Vt. at 400, 721 A.2d at 479.

¶ 10. In so ruling, we expressly stated that the defendant's reliance on Perrillo was “misplaced.” Id. In addition to pointing out that Perrillo involved a lewd-and-lascivious-conduct statute rather than a statute based on repeated sexual assaults, we noted that “Perrillo's actions happened close in time, they were uninterrupted and occurred in the same geographic location, and there was no evidence suggesting any time between touches for Perrillo to reflect on his conduct and recommit himself to abusing the victim, thereby making it more likely that his actions constituted one continuous lewd act.” Id. at 401, 721 A.2d at 480. Thus, in Fuller, we did not backtrack from Perrillo or call into question its holding; rather, we cited the case as good law but distinguished it on its facts, which are very similar to those in the instant case.^*

¶ 11. Nor is there a trend in other jurisdictions that is inconsistent with Perrillo, as the State claims. Indeed, some of the cases that the State relies upon are not as favorable to its position as claimed. For example, in Craun v. State, 762 N.E.2d 230, 232 (Ind.Ct.App.2002), the defendant was convicted on two counts of child molestation...