State v. Wiley

Decision Date02 February 2007
Docket NumberNo. 05-435.,05-435.
Citation917 A.2d 501,2007 VT 13
CourtVermont Supreme Court
PartiesSTATE of Vermont v. Timothy WILEY.

Dan M. Davis, Windham County State's Attorney, and Tracy Kelly Shriver, Deputy State's Attorney, Brattleboro, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

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

¶ 1. BURGESS, J.

Defendant Timothy Wiley appeals from his convictions for aggravated sexual assault, lewd and lascivious conduct with a child, and obstruction of justice. Defendant asserts that (1) his convictions for both aggravated sexual assault and lewd and lascivious conduct violated the Double Jeopardy Clause, and (2) the evidence was insufficient to sustain any of the convictions. We affirm.

¶ 2. On May 22, 2004, A.H. reported to her father, and then to police, that her mother's boyfriend had forcible sex with her on numerous occasions in the past several months. A.H was thirteen at the time. The next day, police collected blankets and sheets from A.H.'s bed. Sperm and female epithelial cells were later collected from a seminal fluid stain found on the bedding. DNA from those cells was compared to DNA samples from A.H. and defendant, and the two were found to be likely sources of the cells. The State filed charges against defendant for aggravated sexual assault and lewd and lascivious conduct in June 2004.

¶ 3. Defendant was held for lack of bail pending trial. While incarcerated, defendant had a series of telephone conversations with A.H.'s mother, a developmentally impaired woman. Recordings of three of the conversations were introduced by the State at trial. In the first conversation, from July 18, 2004, the mother indicated that she was afraid to lose custody of A.H. Defendant suggested that the mother talk to A.H. and tell A.H. that she's lying. In the second conversation, recorded two days later on July 20, 2004, defendant asked the mother to talk to A.H. and persuade her to drop the charges. Otherwise, defendant warned, he would testify at trial and reveal information that would cause the state to take A.H. away from her. The mother responded by saying: "Yeah. Oh, my God. It's not good." In the third conversation, recorded February 25, 2005, defendant told the mother: "I need your help . . . [Y]ou have to try to remember . . . me having sex in [A.H.]'s room and then climbing out the window." After furthering prompting by defendant, the mother twice denied remembering having sex with defendant in A.H.'s room. Defendant replied, "that right there isn't going to help," and told the mother that if she was asked in court about the sexual encounter she should say that she remembered it. Based on these recordings, the State charged defendant with two counts of obstructing justice for threatening the mother with losing custody of A.H. and for suggesting that she lie under oath about remembering a sexual encounter with defendant on A.H.'s bed. After the information was amended to add these charges, defendant waived his right to a jury and was tried by the court.

¶ 4. A.H. testified to forced vaginal intercourse with one "Tim Wiley" on more than five occasions in the months preceding her report to police. A.H. also described one instance when Tim Wiley forced A.H. to perform oral sex. According to A.H., these acts occurred while Tim Wiley was living with her and her mother. A.H. said that she thought of Tim Wiley as her "stepdad" and as her mother's "true boyfriend." However, A.H. was not asked to identify the defendant sitting in the courtroom as the perpetrator of the assaults or as the Tim Wiley she was referring to.

¶ 5. The mother, in her testimony, described living in a series of apartments with A.H. and defendant. The mother made a courtroom identification of defendant as the Tim Wiley with whom she and A.H. had lived. The mother also identified the voices from the recorded telephone conversations as those of herself and defendant. The mother stated that she never felt threatened by anything defendant said during those conversations and testified to remembering a sexual encounter with defendant on A.H.'s bed. The mother maintained that she remembered the encounter without assistance from anyone.

¶ 6. At the close of evidence, and again post trial, defendant moved for a judgment of acquittal pursuant to Vermont Rule of Criminal Procedure 29. Defendant's motions for acquittal on the sexual assault and lewd and lascivious conduct charges were premised on the State's failure to have A.H. identify the defendant seated in the courtroom as the Tim Wiley who engaged in those sexual acts. In his motions for acquittal on the obstruction of justice charges, defendant contended that the State failed to prove that the mother was actually made afraid by defendant's threats and that the State failed to prove that her testimony about a sexual encounter with defendant on A.H.'s bed was not truthful. The trial court denied defendant's motions. Defendant's appeal challenges these rulings, and raises the issue of whether, under the facts presented, conviction for both aggravated sexual assault and lewd and lascivious conduct violated the Double Jeopardy Clause.

I. Double Jeopardy

¶ 7. Defendant raises for the first time on appeal that convictions for both aggravated sexual assault and lewd and lascivious conduct are a violation of the constitutional prohibition against double jeopardy. A constitutional issue not raised at trial is reviewed only for plain error. State v. Judkins, 161 Vt. 593, 594, 641 A.2d 350, 351 (1993) (mem.). Plain error must be both obvious and prejudicial, id., and neither is present here.

¶ 8. The Double Jeopardy Clause provides that no person may "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Clause prohibits second or subsequent prosecutions for the same offense as well as multiple impositions of punishment for an offense. State v. Grega, 168 Vt. 363, 382, 721 A.2d 445, 458 (1998) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). The Double Jeopardy Clause does not, however, prevent cumulative punishments when the Legislature has proscribed conduct by more than one criminal statute or offense. Missouri v. Hunter, 459 U.S. 359, 367-68, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). "[W]hether or not a conviction and sentence may be had under each statute is a question of legislative intent, not constitutional prohibition." Grega, 168 Vt. at 382, 721 A.2d at 458; see also Hunter, 459 U.S. at 368, 103 S.Ct. 673. In the absence of express legislative intent, we apply the test of statutory construction first enunciated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). State v. Hazelton, 2006 VT 121, ¶ 24, ___ Vt. ___, 915 A.2d 224. Under Blockburger, "two offenses are considered the same offense for double jeopardy purposes unless each provision requires proof of a fact that the other does not." Id. (internal quotations omitted).

¶ 9. The charges of aggravated sexual assault and lewd and lascivious conduct did not specify the acts to which each pertained. The aggravated sexual assault count charged defendant with committing "repeated nonconsensual sexual acts as part of a common scheme or plan" between March 28, 2004 and May 22, 2004. The count of lewd and lascivious conduct charged defendant with "contact between his penis and the vagina of A.H." during the same time period. The verdict in the case was no more specific in terms of the acts that were proven for each charge; the court stated only that the State had proven the acts alleged beyond a reasonable doubt. In the absence of a more specific information, defendant argues, the charge of repeated nonconsensual sexual acts during the time at issue must have included all of the sexual acts described by A.H.1 and there was, therefore, no remaining conduct that could be assigned to the lewd and lascivious conduct charge.

¶ 10. Defendant is correct that aggravated sexual assault by repeated nonconsensual sexual acts can, by its terms, encompasses multiple — two or more — sexual acts. A.H.'s testimony described acts of vaginal and oral intercourse; A.H. did not describe any other type of sexual conduct by, or contact with, defendant. According to defendant, all of the conduct alleged is therefore covered by the assault charge. In the absence of any other improper sexual conduct to support the lewd and lascivious charge, defendant maintains, a conviction for lewd and lascivious conduct was impermissible because all elements of lewd and lascivious conduct are necessary elements to sexual assault. The State responds that under State v. Fuller two sexual acts are sufficient to satisfy the requirement of "repeated" acts. 168 Vt. 396, 400-02, 721 A.2d 475, 479-80 (1998). Therefore, the State argues, we may assume that the trial court found two or more, but not all, of the sexual acts to fulfill the sexual assault charge and found whatever remaining acts fulfilled the lewd and lascivious conduct charge. We conclude that conviction under both charges did not violate double jeopardy. However, we need not assign acts to one charge or another as the State suggests. Rather, we need only determine whether the two offenses contain distinct elements to satisfy the Blockburger test.

¶ 11. Several different elements in the two criminal statutes lead us to conclude that the Blockburger test is satisfied. As charged in this case, lewd and lascivious conduct consisted of: defendant wilfully committing a lewd act upon a person under sixteen years of age with the intent to appeal to his own sexual desires. See 13 V.S.A. § 2602; State v. Forbes, 161 Vt. 327, 332-33, 640 A.2d 13, 16 (1993) (discussing elements of lewd and lascivious conduct with a child). Aggravated sexual assault, as charged, consisted of: defendant, acting with intent,...

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