State v. Nelson

Decision Date16 October 2020
Docket NumberNo. 18-333,18-333
Citation246 A.3d 937
CourtVermont Supreme Court
Parties STATE of Vermont v. Morris D. NELSON

Alexander N. Burke, Bennington County Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Grearson, Supr. J., Specially Assigned

CARROLL, J.

¶ 1. Defendant appeals his convictions for (1) repeated aggravated sexual assault as part of a common scheme and plan, (2) sexual assault of a victim under the age of eighteen entrusted to his care by authority of law, and (3) sexual exploitation of a minor. He argues that the second charge is duplicative with both the first and third charges, in violation of the Double Jeopardy Clause; that the State's evidence on the second charge was insufficient to prove the victim was entrusted to his care by authority of law; and that the jury instruction on the first charge constituted plain error because the court failed to give a unanimity instruction. Regarding defendant's first argument, we conclude that only the second and third charges are duplicative. Accordingly, we vacate the sexual-exploitation charge as requested by the State in the event we found the second and third charges duplicative. We reject defendant's other arguments and thus uphold the convictions on the sexual-assault and aggravated-sexual-assault charges. Under the circumstances of this case, a remand for resentencing is not warranted.

¶ 2. Viewed in the light most favorable to the State, the evidence presented at trial reveals the following facts. Around June 2015, defendant began teaching at a residential school and treatment program for girls with special needs located in Bennington, Vermont. He quickly developed a close relationship with complainant, a student at the school who was in the custody of New Hampshire's "DCF."1 Beginning that summer, unbeknownst to the school, defendant began to spend time with complainant on weekends at her brother's residence in New Hampshire. In the fall of 2015, defendant and his wife began talking about having complainant live with them.

¶ 3. In October 2015, defendant took complainant to a concert in Manchester, New Hampshire. He provided her with so much alcohol that they were denied entry into the concert because complainant was, in her words, "way too drunk." They then returned to the hotel room defendant had booked; it had only one bed. Early the following morning, complainant woke up to find defendant on top of her, forcing his penis into her vagina. Complainant was unable to tell him to stop or push him away because she was too intoxicated. Defendant also forced complainant to have sex at a hotel in Salem, Massachusetts, on October 31 of that year, and at a different hotel in New Hampshire during a weekend when she was visiting her brother.

¶ 4. In late November, defendant stopped working at the school following an incident in which he yelled and cursed at a school program coordinator during a Thanksgiving celebration. Defendant had urged complainant to eat with himself and his wife, rather than with other residents of her dorm. When the coordinator told complainant to return to the table with her dormmates, as required, defendant yelled angrily at the coordinator.

¶ 5. At some point, complainant began staying regularly at the home defendant shared with his wife. Complainant testified that defendant and his wife set up an arrangement through the New Hampshire court system, making both the defendant and his wife "permanent caring adults" (PCAs) for complainant.2 Thus, complainant was able to leave school three nights a week to stay in defendant's home. She had her own room in the basement of the home. Defendant's wife testified that because complainant was nearly eighteen, they did not follow a formal interstate foster-care process, and that instead it was most sensible for complainant to simply live with defendant and his wife with "permission from New Hampshire DCF." When complainant lived with defendant, he was her primary caretaker.

¶ 6. During Christmas break in December 2015, complainant stayed at defendant's house for roughly a week while his wife was in Mexico with her children. Beginning on the second night, defendant entered complainant's room after she had "settled in" to bed and ran his hands up and down her body. According to complainant, on at least one night, he sexually assaulted her by penetrating her vagina with his penis, and on at least three nights he jammed his fingers into her vagina. Defendant physically restrained complainant while sexually assaulting her. These assaults took place in complainant's bedroom in the basement of defendant's home.

¶ 7. Complainant testified to a host of other assaults. She testified that defendant groped her in a storage area outside her bedroom, in a computer room, in the kitchen, and on the deck. In a shed on the property, where she worked out a lot, he groped her, and on one occasion he grabbed her aggressively, started taking her clothes off, and ultimately penetrated her vagina with his penis and fingers. Defendant also groped complainant in his truck when they would drive to the store or the gym, and one time he refused to bring her home from the gym in New York where they worked out unless she complied with his demand for oral sex. Complainant did not initially report these assaults because she had come to depend on defendant and his wife for a place to live, food, a bank account, and a car. She eventually came forward after a period where she was "away from the house a lot more," during which time defendant "started getting more and more aggressive."

¶ 8. The State ultimately charged defendant with three counts: (I) repeated nonconsensual aggravated sexual assault as part of a common scheme and plan, in violation of 13 V.S.A. § 3253(a)(9) ; (II) sexual assault of a victim under eighteen years of age entrusted to defendant's care by authority of law (sexual assault–entrustment), in violation of 13 V.S.A. § 3252(d) ; and (III) sexual exploitation of a minor, in violation of 13 V.S.A. § 3258(c). The criminal division held a jury trial in June 2017. After the close of evidence, defendant moved for a directed verdict on Count II, sexual assault–entrustment, and Count III, sexual exploitation of a minor.

¶ 9. Defendant argued that he should be acquitted on the charge of sexual assault of a victim under eighteen entrusted to his care because the State failed to show that a sexual assault occurred in Vermont prior to when he was fired by the Bennington School and no longer complainant's teacher. The State agreed that there was no evidence of an assault in Vermont before defendant was fired, but argued that he was still in a position of power over complainant because he had been authorized to provide for her health and welfare while she was residing with him. The trial court denied the motion but determined that all three charges would be limited to assaults that occurred in Vermont, and therefore the start date for all three charges would be December 1, 2015, the first day of the first month following defendant's termination from the school.

¶ 10. Defendant also argued that he should be acquitted on the charges in Counts II and III because the State failed to show that he was acting as complainant's legal guardian to prove the elements of entrustment (for Count II) or power, authority, or supervision (for Count III). The State argued that the jury could make both findings based on the testimony that New Hampshire DCF had approved complainant's residence with defendant. The court concluded that the evidence was sufficient to support the necessary findings for each charge.

¶ 11. During these discussions, the trial court determined that out-of-state acts could not serve as the basis for the charges and that, to ensure jury unanimity, the State had to select a specific act as the basis for each charge. The State disagreed with both determinations but, when pressed, identified the allegations of penis-vagina contact that took place in complainant's bedroom in December 2015 as the basis for each charge, including as the predicate sexual act for the aggravated-sexual-assault charge. Therefore, in instructing the jury on each count, the court specified, in part, that defendant was charged with "engag[ing] in a sexual act with [complainant] by touching his penis to her vagina in the basement bedroom in December 2015."

¶ 12. Before instructing the jury, the trial court also noted that "there is some duplication" as to Counts II and III. The court explained that Count II required the State to show that complainant was entrusted to defendant's care by authority of law and that Count III required the State to show an abuse of a position of power, authority or supervision. The State responded, "There's different elements, but for our purposes, right now, I think both can go [to] the jury and then [if] there's return of guilty verdicts in both ... we can have an argument about [whether] one of them is double jeopardy or not." Defense counsel did not speak during this exchange.

¶ 13. After the jury returned a guilty verdict on all three counts, defendant filed several motions, including a motion to require the State to make an election to remedy the double-jeopardy issue. Defendant argued that there were double-jeopardy problems between Counts II and III, as well as between Counts I and II, and therefore the court should dismiss Count II. The State argued that because defendant did not raise the double-jeopardy issues at trial, he forfeited those claims. The court issued a written decision concluding that the double-jeopardy claims had been raised but denying them on their merits. The court determined that, for both Counts II and III and Counts I and II, each charge required proof of an element not part of the other charge.

¶ 14. On appeal, de...

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2 cases
  • State v. Hovey
    • United States
    • United States State Supreme Court of Vermont
    • August 27, 2021
    ...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......
  • State v. Hovey
    • United States
    • United States State Supreme Court of Vermont
    • August 27, 2021
    ...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 Blockburger test, multiple charges "are considered the same offense for double jeopardy purposes unless each . . . requires proof of ......

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