Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-450

                                          JULY TERM, 2011

 State of Vermont                                      }    APPEALED FROM:
                                                       }
                                                       }
    v.                                                 }    Superior Court, Bennington Unit,
                                                       }    Criminal Division
                                                       }
 Gregory H. Penn a/k/a David Smith                     }    DOCKET NO. 1457-12-08 Bncr

                                                            Trial Judge: David T. Suntag

                          In the above-entitled cause, the Clerk will enter:

        Defendant appeals his jury conviction on three counts of aggravated sexual assault and
one count of sexual assault, arguing for the first time on appeal that the evidence was insufficient
to establish that he was the man who committed the alleged offenses. We affirm.

        In 2008, defendant was charged with four counts of aggravated sexual assault and one
count of sexual assault for conduct that was alleged to have occurred between January 1, 1998
and May 26, 2001. The information alleged that defendant sexually assaulted C.S., who was
under the age of ten at the time of the alleged offenses, by digital penetration on two occasions
and by intercourse on two occasions. The information also alleged that defendant sexually
assaulted by digital penetration C.S.’s sister, A.G., who was under the age of sixteen at the time
of the alleged offense. At the close of the evidence at trial, the State dismissed one of the
aggravated sexual assault charges involving sexual intercourse, and the jury convicted defendant
on the remaining charges.

        On appeal, defendant argues that the evidence at trial was insufficient to demonstrate
beyond a reasonable doubt that he was the person who committed the charged offenses.
Defendant moved for a judgment of acquittal at the close of the State’s case, but not on the issue
of identity. Because he failed to raise the identity issue or renew his motion for judgment of
acquittal upon completion of his evidence, the issue on appeal is whether the trial court should
have entered a judgment of acquittal on its own motion because “the record reveals that the
evidence is so tenuous that a conviction would be unconscionable.” State v. Norton, 139 Vt.
532, 534 (1981), overruled on other grounds by State v. Brooks, 163 Vt. 245 (1995).

        Upon review of the record, we conclude that defendant cannot satisfy that standard. Both
C.S. and A.G. testified that they were sexually assaulted by a black man with a Jamaican accent
whom they knew as “Eddie” and who was a regular drug customer at their mother’s home. The
investigating detective testified that defendant had a Jamaican accent, and the jury heard a
recording of his voice. The detective also testified that defendant admitted going by the name
“Eddie,” that he had used aliases with the name “Eddie,” and that a public record from 1998
indicated that defendant and “Eddie” were the same person who had a connection to the home
where the victims lived with their mother at the time of the alleged assaults. A.G. and another
sister who was not a victim identified defendant in a police photo array as the person they knew
at that time as “Eddie.” C.S., who was only four or five years old at the time of the assaults, was
unable to identify defendant in the police photo array, but did identify him in the courtroom at
trial as the perpetrator of sexual assault against her. The second putative victim, her older sister
A.G., testified that she too was digitally penetrated by the same “Eddie,” whom she also
identified in court as the defendant. Despite defendant’s competing evidence that the girls were
exposed to a steady stream of men buying drugs at mother’s residence, including one other with
a Jamaican accent, the state’s proof of defendant’s identity ten years later as the perpetrator of
the alleged offenses was not so tenuous as to demonstrate that the conviction in this case is
unconscionable.

       Affirmed.

                                             BY THE COURT:


                                             _______________________________________
                                             John A. Dooley, Associate Justice

                                             _______________________________________
                                             Marilyn S. Skoglund, Associate Justice

                                             _______________________________________
                                             Brian L. Burgess, Associate Justice




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