State v. Deyo, 04-179.

Citation2006 VT 120,915 A.2d 249
Decision Date22 November 2006
Docket NumberNo. 04-179.,04-179.
CourtUnited States State Supreme Court of Vermont
PartiesSTATE of Vermont v. Anthony DEYO.

David W. Gartenstein, Windham County Deputy State's Attorney, Brattleboro, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Henry Hinton, Appellate Defender, Montpelier, for Defendant-Appellant.

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

REIBER, C.J.

¶ 1. Defendant Anthony Deyo appeals his conviction of aggravated sexual assault. Defendant was tried and convicted by a jury of four counts: three counts of sexual assault on his child who was under the age of sixteen and one count of aggravated sexual assault based on repeated nonconsensual sexual acts as part of a common scheme or plan. Defendant appeals the aggravated sexual assault conviction, claiming that the trial court twice erred in instructing the jury on that count. We affirm.

¶ 2. On December 27, 2001, the State charged defendant with three criminal counts of sexual assault on T.D., a minor, for alleged violations of 13 V.S.A. § 3252(b)(1) (prohibiting sexual acts with a person under the age of sixteen who is the actor's child). Nearly two years later, on October 17, 2003, the State amended the information to add a fourth count, aggravated sexual assault, based on "repeated nonconsensual sexual acts as part of the actor's common scheme or plan." 13 V.S.A. § 3253(a)(9).1 A jury trial was held in December 2003. T.D. testified that between September and December 2001, when she was thirteen years of age, her father had sex with her ten to fifteen times. Prior to trial, defendant had confessed to having sex with his daughter eight to twelve times over the same period, but he later challenged his confession at trial. Defendant was convicted of all four counts, and this appeal followed.

¶ 3. On appeal, defendant raises two claims of error in the trial court's instructions to the jury: (1) in allowing the jury to use one of the incidents of the charged sexual conduct as a predicate for finding the element of "repeated" sexual acts for the aggravated charge; and (2) in instructing the jury that, because the complainant was under sixteen at the time of the alleged sexual acts, the acts were nonconsensual as a matter of law.

I.

¶ 4. Defendant first argues that the trial court committed plain error in violation of double jeopardy principles and legislative intent because its instructions allowed the jury to convict him of aggravated sexual assault based on "repeated" sexual acts by finding, in addition to any acts proved in connection with the three individual counts, that only one uncharged compounding act had occurred.

¶ 5. The trial court instructed the jury on the count of aggravated sexual assault, in pertinent parts, as follows:

These elements are as follows: that between September 11th, 2001 and December 31st, 2001, at Rockingham, the defendant, Anthony Deyo, one, engaged in repeated sexual acts with [T.D.]; two, at a time when his child, [T.D.], was under the age of 16 years; three, and that he intentionally engaged in the sexual acts; four, and that the sexual acts were part of a common scheme or plan.... As distinguished from counts one through three, count four does not require that you find that particular acts occurred at particular times. This is in recognition of the difficulty of determining in retrospect the exact time of occurrence of sexual acts. Rather, the State charges that in addition to the three distinct acts, which are the subject of counts one through three, Anthony Deyo engaged in other sexual acts with [T.D.].

Specifically, the State charges that on other occasions, the defendant placed his penis in [T.D.'s] vagina and also that contact occurred between Anthony Deyo's penis and [T.D.'s] mouth, and that contact occurred between Anthony Deyo's mouth and [T.D.'s] vulva.... If you find that one or more sexual acts occurred between Anthony Deyo and [T.D.], in addition to any acts proved in connection with counts one through three, the State will have met its burden of proof as to the element of repeated sexual acts. (Emphasis added.)

¶ 6. After delivering the above charge to the jury, but before sending the jury to deliberate, the court conferred with counsel about its instructions pursuant to Rule 30 of the Vermont Rules of Criminal Procedure. After that conference, the court instructed the jury:

I need to make one more refinement, as to my instruction on count four, regarding aggravated child sexual assault.... [I]t is important that you be able to unanimously agree that the particular acts, beyond those charged in counts one through three did occur, and that you agree unanimously, what those acts were ... you all agree on what they were and that they, in fact did occur. (Emphasis added.)

¶ 7. Defendant did not object to the jury instruction, and so we review for plain error. V.R.Cr.P. 52(b); State v. Tahair, 172 Vt. 101, 104-05, 772 A.2d 1079, 1082 (2001). To rise to the level of plain error, any claimed error must both seriously affect substantial rights and have an unfair prejudicial impact on jury deliberations. In re Carter, 2004 VT 21, ¶ 21, 176 Vt. 322, 848 A.2d 281. Such an error exists "only in extraordinary situations where it is obvious and strikes at the heart of defendant's constitutional rights or results in a miscarriage of justice." State v. Forant, 168 Vt. 217, 220, 719 A.2d 399, 401 (1998) (quotation omitted).

¶ 8. Defendant argues that the trial court misstated the law when it instructed the jury that if it found "that one or more sexual acts occurred between Anthony Deyo and [T.D.], in addition to any acts proved in connection with counts one through three, the State will have met its burden of proof as to the element of repeated sexual acts," thereby allowing the jury to use one of the single charges as a predicate for a separate aggravated sexual assault conviction based on "repeated" sexual acts. 13 V.S.A. § 3253(a)(9). Even if that instruction amounted to error, we do not find plain error.

¶ 9. We view jury instructions in their entirety in assessing for plain error, Carter, 2004 VT 21, ¶ 21, 176 Vt. 322, 848 A.2d 281, and we find error in a charge "only when the entire charge undermines confidence in the verdict, and only in extraordinary cases...." State v. Carpenter, 170 Vt. 371, 374-75, 749 A.2d 1137, 1139 (2000). There is no plain error "[i]f the charge as a whole is not misleading." Forant, 168 Vt. at 220, 719 A.2d at 401. Instructions that misstate the law at one point but correctly state it multiple times elsewhere, without objection, do not usually give rise to plain error when reviewed as a whole. See, e.g., Carter, 2004 VT 21, ¶ 22, 176 Vt. 322, 848 A.2d 281 (no plain error where jury instruction twice omitted imminence element but explained the element multiple times elsewhere, including immediately after both omissions).

¶ 10. The court instructed the jury that they could find the element of repeated acts to have been proved if they found "one or more" acts in addition to the other counts; however, in the preceding paragraph of the jury charge, the court stated: "in addition to the three distinct acts, which are the subject of counts one through three, Anthony Deyo engaged in other sexual acts with [T.D.]." After the Rule 30 conference, the clarifying instruction, while not entirely illuminating, reinforced the notion that the jury needed to find that more than one additional act occurred. Moreover, in light of daughter's testimony that her father had sex with her ten to fifteen times, we discern no prejudice, because that testimony would have most likely been rejected or accepted in its entirety, leaving the jury to believe that defendant either did not engage in sex with his daughter at all or did so at least ten times. This was not plain error.

II.

¶ 11. Next, defendant argues that the trial court committed plain error when, on the element that the repeated sexual acts be "nonconsensual," it delivered the following instruction to the jury: "As with counts one through three, you must also find that [T.D.] was under the age of sixteen at the time of any sexual act, making such acts nonconsensual as a matter of law." Trial counsel and the court had discussed the instruction at the charge conference and all agreed on the instruction without further objection, so our review is for plain error. V.R.Cr.P. 52(b); supra, ¶¶ 7-8. We do not find any error.

¶ 12. We are not persuaded by defendant's argument that the court "relieved the [S]tate of its burden to prove an essential element of [aggravated sexual assault] beyond a reasonable doubt and improperly directed the jury to convict Mr. Deyo without finding that the alleged repeated sexual acts were `nonconsensual.'" Instead, the trial court instructed the jury as a matter of law on the meaning of "nonconsensual" when the complainant is under sixteen years of age. The complainant's age was not disputed.

¶ 13. Defendant was convicted of aggravated sexual assault for subjecting the victim "to repeated nonconsensual sexual acts as part of the actor's common scheme and plan." 13 V.S.A. § 3253(a)(9). The first three counts — of which defendant was convicted and does not appeal — require only that the defendant engage in a sexual act with his child under the age of sixteen. 13 V.S.A. § 3252(b)(1). Section 3252(b)(1) is silent as to consent, and defendant argues that the trial court wrongly imported the principles of that statute into the aggravated sexual assault count, which includes the explicit "nonconsensual" element. We do not agree.

¶ 14. Our paramount goal in interpreting a statute is to give effect to the Legislature's intent. State v. O'Neill, 165 Vt. 270, 275, 682 A.2d 943, 946 (1996). "The definitive source of legislative intent is the statutory language, by which we are bound unless it is uncertain or unclear." In re Bennington Sch., Inc., 2004 VT 6, ¶ 12, 176 Vt. 584, ...

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18 cases
  • State v. Nelson
    • United States
    • Vermont Supreme Court
    • October 16, 2020
    ... ... The distinguishing element at the heart of the offense as charged is the repetition of nonconsensual sexual acts as part of a common scheme and plan. See State v. Deyo , 2006 VT 120, 17, 181 Vt. 89, 915 A.2d 249 (recognizing that legislative intent underlying 3253(a)(9) "is that repeated sexual assaults during an assaultive course of conduct or series of exertions of power will result in harsher punishment" (quotation omitted)). On the other hand, 3252(d) ... ...
  • State v. Hazelton
    • United States
    • Vermont Supreme Court
    • November 22, 2006
    ...that "Vermont has neither statutorily deviated from the traditional rule, nor done so by judicial decision."). As pointed out in Deyo, 2006 VT 120, ¶ 20, ___ Vt. ___, 915 A.2d 249 , the dissent's reading of the statute would also appear to extend the defense of consent to repeated sexual a......
  • State v. Nelson
    • United States
    • Vermont Supreme Court
    • October 16, 2020
    ... ... The distinguishing element at the heart of the offense as charged is the repetition of nonconsensual sexual acts as part of a common scheme and plan. See State v. Deyo , 2006 VT 120, 17, 181 Vt. 89, 915 A.2d 249 (recognizing that legislative intent underlying 3253(a)(9) "is that repeated sexual assaults during an assaultive course of conduct or series of exertions of power will result in harsher punishment" (quotation omitted)). On the other hand, 3252(d) ... ...
  • State v. Bellanger
    • United States
    • Vermont Supreme Court
    • February 9, 2018
    ...essential element for conviction under § 3253a.6 We have previously considered this precise argument relative to § 3253(a)(9). See State v. Deyo, 2006 VT 120, 181 Vt. 89, 915 A.2d 249. In Deyo, the defendant was charged with aggravated sexual assault on a thirteen-year-old on the basis of "......
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