State v. Hovey

Decision Date27 August 2021
Docket Number2020-249
CourtVermont Supreme Court
PartiesState of Vermont v. Ryan R. Hovey

On Appeal from Superior Court, Essex Unit, Criminal Division Michael J. Harris, J.

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

Allison N. Fulcher of Martin, Delaney & Ricci Law Group Barre, for Defendant-Appellant.

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


¶ 1. Defendant appeals his convictions on two counts of aggravated sexual assault, arguing that the two convictions violate double jeopardy because, as charged under the circumstances, they constitute one offense. Additionally, defendant argues that probation condition 41, which requires him to work and reside where his probation officer approves, is an improper delegation of power to his probation officer. We agree that, as charged under the circumstances, defendant's convictions violate double jeopardy and remand for the State to elect which aggravated-sexual-assault conviction should stand. Furthermore, because the trial court failed to support condition 41 with findings, we remand to give the trial court an opportunity to justify, revise, or remove the condition. I. Factual & Procedural History

¶ 2. In August 2018, defendant and complainant drove to a friend's house to help him move. Defendant and complainant dated on and off between 2007 and 2017. Complainant was drinking prior to her arrival at the friend's house and continued to drink while assisting in the move. Defendant's nineteen-year-old coworker also agreed to help with the move.

¶ 3. The three left the friend's home together in defendant's vehicle. Both men sat in the front seat and complainant sat in the back. Complainant was highly intoxicated, and she became unconscious during the drive. At this point, defendant suggested to his coworker that they both have sex with her. His coworker agreed. Defendant drove to a secluded cemetery and parked in an area not visible from the main road. During this time, complainant remained unconscious in the back seat of the car.

¶ 4. Defendant unbuckled complainant's seat belt, undressed her from the waist down, and then invited his coworker to have sex with her. His coworker proceeded to have sex with complainant in the backseat while she was passed out. Defendant then attempted to have sex with complainant in the backseat. The space was too confined, however, and he dragged complainant out of the vehicle onto a nearby grassy area. Complainant briefly regained consciousness while defendant had sex with her on the ground, but she lost consciousness again after defendant pushed her face to the side.

¶ 5. Afterwards, both men dressed complainant and lifted her unconscious body back into the car. While defendant drove back to complainant's apartment, she regained consciousness just long enough to hear the men discuss whether she was on birth control. The next thing complainant remembered was waking up in her bed with her clothes on. Several days later, complainant reported the incident to the Essex County Sheriff's Department.

¶ 6. In December 2018, defendant was charged by information with two counts of aggravated sexual assault. The first count alleged that defendant had subjected complainant to repeated nonconsensual sexual acts as part of a common scheme and plan, in violation of 13 V.S.A. § 3253(a)(9). The second count alleged that defendant violated § 3253(a)(2) because he was joined by his coworker in sexually assaulting complainant. After the State presented its case, defendant argued that the facts supporting the two charges were the same and double jeopardy prevented conviction and sentencing on both charges. The court indicated it would allow the jury to deliberate on both charges and if the jurors returned guilty verdicts on both charges, the issue would be addressed. Following a two-day trial, the jury returned guilty verdicts on both counts.

¶ 7. On March 13, 2020, the trial court issued an entry order, explaining that before sentencing, it wanted to address the issue that arose during the trial of whether convictions on both counts would violate the Double Jeopardy Clause.[1] In a short memorandum, mostly quoting our recent decision in State v. Fonseca-Cintron, 2019 VT 80, Vt., 238 A.3d 594, the State argued that convictions on both counts did not violate double jeopardy because § 3253(a)(2) and (a)(9) have different elements, and therefore constitute separate offenses. Defendant contended that although subsections (a)(2) and (a)(9) have different elements, convictions on both counts violated double jeopardy because both counts required proof of the same fact-that two persons sexually assaulted complainant.

¶ 8. The trial court concluded that convictions on both counts would not violate double jeopardy. Applying the test first articulated by the U.S. Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932), the court concluded that § 3253(a)(2) and (a)(9) were separate offenses because each required proof of a different fact. It explained that § 3253(a)(2) requires that the nonconsensual sexual assault occur while the actor is joined or assisted by one or more persons and § 3253(a)(9) requires proof of multiple nonconsensual sexual acts. But because the Blockburger test only creates a presumption of legislative intent, the court considered the structure of the aggravated-sexual-assault statute. It reasoned that because § 3253 specifies that the crime of aggravated sexual assault is committed under "any one" of the nine enumerated circumstances, the Legislature intended for "each and every one" of the specified circumstances to support an aggravated-sexual-assault conviction.

¶ 9. The trial court later sentenced defendant to two consecutive ten-year sentences and placed him on probation for life. The court imposed several standard conditions recommended in the presentence investigation report, including condition 41, which provides that "[defendant] shall reside/work where [his] Probation Officer or designee approves" and "shall not change [his] residence/employment without the prior permission of [his] Probation Officer or designee."

¶ 10. On appeal, defendant renews his argument that the two convictions violate double jeopardy because, as charged, they both required proof of the same fact-namely, that defendant and his coworker sexually assaulted complainant. Defendant also argues that condition 41 is an improper delegation of power to his probation officer. In response, the State argues that under the Blockburger test, there is a presumption that § 3253(a)(2) and (a)(9) are separate offenses because each subsection requires proof of a fact that the other does not. The State concedes, however, that condition 41 is overbroad because the court did not make findings justifying the condition.

¶ 11. We review defendant's double jeopardy claim de novo and conclude that the two convictions violate the Double Jeopardy Clause. Additionally, because defendant did not object below, we review condition 41 for plain error and conclude that the court committed plain error in imposing the condition without making findings on why the condition was necessary.

II. Double Jeopardy

¶ 12. The first issue we address is whether convicting defendant on two counts of aggravated sexual assault violates double jeopardy. The Double Jeopardy Clause in the Fifth Amendment of the United States Constitution provides that "[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend V; see Benton v. Maryland, 395 U.S. 784, 795-96 (1969) (holding that Fifth Amendment is applicable to states through Fourteenth Amendment). The Clause "safeguards a criminal defendant from facing multiple punishments for the same offense." State v. Abel, 2019 VT 22, ¶ 10, 210 Vt. 1, 210 A.3d 439 (quotation omitted). "Because legislative bodies are empowered to define [offenses] and fix punishments, . . . the Clause is best understood as limited to assuring that the court does not exceed its legislative authorization." State v. Breed, 2015 VT 43, ¶ 16, 198 Vt. 574, 117 A.3d 829 (alteration omitted) (quotation omitted).

¶ 13. "Thus, when determining whether multiple convictions based on one act violate the Double Jeopardy Clause, our central inquiry is one of legislative intent, not constitutional prohibition." Fonseca-Cintron, 2019 VT 80, ¶ 21 (quotations omitted). "If there is a clear indication that the Legislature meant to impose multiple punishments for the same conduct under different statutes, then we rely on that clear expression of intent." Id. (quotation omitted). If legislative intent is unclear, however, we "apply the test of statutory construction laid out in Blockburger v. United States to determine whether the charges describe two offenses or only one." State v. Nelson, 2020 VT 94, ¶ 20, Vt., 246 A.3d 937. Under the Blockburger test, multiple charges "are considered the same offense for double jeopardy purposes unless each . . . requires proof of a fact that the other does not." State v. Ritter, 167 Vt. 632, 632-33, 714 A.2d 624, 625 (1998) (mem.) (quotation omitted). But because the Blockburger test only creates a presumption, it may be overcome "by a clear indication of contrary legislative intent." State v. Hazelton, 2006 VT 121, ¶ 39, 181 Vt. 118, 915 A.2d 224 (quotation omitted).

¶ 14. To begin, we consider whether "there is a clear indication that the Legislature meant to impose multiple punishments for the same conduct." Fonseca-Cintron, 2019 VT 80, ¶ 21 (quotation omitted). Unless the Legislature has "explicitly indicated an intent to authorize multiple punishments" for the same conduct under separate statutory provisions, we app...

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