2011 VT 131



State
v. Carrolton (2010-441)
 
2011
VT 131
 
[Filed
02-Dec-2011]
 
NOTICE: 
This opinion is subject to motions for reargument under V.R.A.P. 40 as well as
formal revision before publication in the Vermont Reports.  Readers are requested
to notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street,
Montpelier, Vermont 05609-0801 of any errors in order that corrections may be
made before this opinion goes to press.
 

2011 VT 131

 

No. 2010-441

 

State
  of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Bennington Unit,


 


Criminal
  Division


 


 


Bruce
  Carrolton


October
  Term, 2011


 


 


 


 


David A. Howard, J.


 

Christina Rainville and Robert V. Simpson, Jr., 
  Bennington County Deputy State’s
Attorneys, Bennington, for Plaintiff-Appellant.
 
Matthew F. Valerio, Defender
General, Anna Saxman, Deputy Defender General,

  Rebecca N. Turner, Appellate Defender, and Katie Polonsky, Law
Clerk (On the Brief),
  Montpelier, for
Defendant-Appellee.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
JOHNSON, J.   The State appeals from
an interlocutory order of the criminal division of the superior court granting
defendant’s motion to merge into a single count the two counts of
lewd-and-lascivious conduct charged by the State.  Relying on State v.
Perillo, 162 Vt. 566, 649 A.2d 566 (1994), which involved facts very similar to
this case, the trial court ruled that because the alleged offensive touching
occurred continuously without any intervening act over a short period of time,
the State could not charge defendant with multiple counts of
lewd-and-lascivious conduct.  Recognizing that our holding in Perillo
governs this case, the State on appeal asks this Court to overrule Perillo and
hold that the touching of two distinct intimate parts of the body are two
separate offenses as a matter of law.  We decline to overrule Perillo and,
accordingly, affirm the trial court’s decision.

¶ 2.            
In February 2010, the
State charged defendant with two counts of lewd and lascivious conduct, in
violation of 13 V.S.A. § 2601, based on facts alleged by the sixteen-year-old
complainant, who testified in a deposition that defendant rubbed her back,
stomach, breasts, and vaginal area while she was lying in bed.  Defendant
filed a motion to dismiss one of the counts, relying on Perillo. 
The trial court granted the motion and gave the State ten days to merge the
allegations into one count.  In so ruling, the court found that the
alleged lewd acts “were essentially continuous and done in a very short amount
of time and in the same location.”  The court further found that the
“touching progressed continually from her back to her breast area and then to
her vaginal area” and “was clearly not interrupted by any break in time or
intervening event.”  The court then granted the State’s motion for an
interlocutory appeal, as permitted under 13 V.S.A. § 7403(b) (allowing State in
felony prosecution to appeal dismissal of indictment or information as to one
or more counts).
¶ 3.            
On appeal, the State
does not challenge the court’s findings concerning the nature of defendant’s
conduct.  Rather, as noted, the State argues only that Perillo
should be overruled because touching two distinct intimate body parts—the
breasts and vaginal area—should be considered separate crimes as a matter of
law.  In support of this argument, the State contends that Perillo
misread the major case it relied upon and has since been undercut by our later
decisions and the “strong trend” in other jurisdictions.  According to the
State, from the perspective of victims, defendants, and the public in general,
offensive touching of two distinct intimate body parts amounts to separate
actions with separate effects warranting separate punishment.
¶ 4.            
Before addressing the
specifics of the State’s arguments, we note that they are overstated, at
best.  There is no strong trend to treat the touching of distinct intimate
body parts as separate crimes as a matter of law; indeed, there is no trend at
all in that direction.  Moreover, this Court has not
backtracked from Perillo since it was decided seventeen years ago. 
To the contrary, in citing and discussing Perillo in later cases
involving multiple counts of sexual offenses, this Court has at times
distinguished the facts of Perillo but has never wavered from its
holding.
¶ 5.            
In Perillo, the
defendant was charged with and convicted of two counts of lewd-and-lascivious
conduct with a child, in violation of 13 V.S.A. § 2602, which provides a
maximum penalty of five years.  Similarly to complainant’s testimony in
the instant case, the complainant in Perillo testified that over the
course of “a few minutes or so” the defendant first rubbed her stomach and then
went up to the chest area before moving down into her pants.  162 Vt. at
567, 649 A.2d at 1032.  The defendant was convicted on both counts and
sentenced to two-and-one-half years to five years on each count.  The
defendant argued that the evidence supported a conviction on no more than one
count of the offense and that his sentence effectively doubled the penalty set
in the statute by the Legislature.
¶ 6.            
We agreed.  Citing Harrell
v. State, 277 N.W.2d 462, 473 (Wis. Ct. App. 1979) for the proposition that
an episode of sexually assaultive behavior usually involves multiple invasions
of the victim’s intimate body parts, we doubted a legislative intent in § 2602
“to increase the potential sentence for these crimes exponentially depending on
the number of touches involved in a single episode of sexual abuse.”  Perillo,
162 Vt. at 567-68, 649 A.2d at 1032.  We noted that the sexual abuse
prohibited by § 2602 is an aggravated form of battery, and that in battery
cases, multiple blows during a single attack can generally be prosecuted only
as a single offense.  Id. at 568, 649 A.2d at 1032.  We
pointed out that, under the State’s view, the victim’s ability to remember
details of the sexual contact would be the only limit on the number of counts
that could be brought in a case, which would make it impossible to reasonably
define the distinction between the potential for enough and too much punishment
under the statute.  Id. at 568, 649 A.2d at 1033.
¶ 7.            
The facts in Perillo
are nearly identical to the facts of this case, and the reasoning in Perillo
applies equally to § 2601 and § 2602 of Title 13.  Therefore, if Perillo
remains good law, the State cannot prevail in this appeal.  The State does
not argue otherwise.
¶ 8.            
The State argues,
however, that Parillo misconstrued Harrell, and that since we
issued Perillo, we have backed away from its holding.  Neither contention
is accurate.  The court in Harrell ruled that the defendant was
properly convicted on two counts of sexual assault against a single victim,
where he had forcible, nonconsensual sexual intercourse with the victim on two
separate occasions separated by approximately twenty to twenty-five
minutes.  277 N.W.2d at 464, 471.  The court set forth factors to
consider in determining whether multiple counts were legally
justified—including the nature of the act.  Id. at 472-73.  In
discussing those factors, the court noted that an episode of sexually
assaultive behavior usually involves multiple invasions of the victim’s
body.  Id. at 473.  The Harrell court followed this
observation by stating that “[w]hether such invasions are a single offense or
separate offenses can sometimes be placed in perspective by the time interval
between specific acts.”  Id. (“Of all the identifiable elements and
factors, the question of time more than any other circumstance seems to
permeate all of the factors.”).  We recognize that Harrell also
included dicta opining that the invasion of different intimate body parts
should be viewed as different acts, see id.; however, in Perillo,
we cited Harrell only for the proposition—expressly stated in that
case—that a single episode of sexual contact usually involves multiple
invasions of the victim’s intimate body parts.  162 Vt. at 567-68, 649
A.2d at 1032.  We did not misconstrue Harrell.
¶ 9.            
In support of its claim
that we have moved away from our holding in Perillo since issuing the
decision, the State first relies upon State v. Fuller, 168 Vt. 396, 721
A.2d 475 (1998).  In Fuller, the defendant was convicted of
aggravated sexual assault under 13 V.S.A. § 3253(a)(9), which prohibits
“repeated nonconsensual sexual acts as part of the same occurrence or . . . as
part of the actor’s common scheme and plan.”  The conviction was based on
evidence demonstrating that the defendant forcibly engaged his stepson in oral
sex in a bedroom of their home; the boy got away from him and ran into the
living room; and then the defendant followed the boy into the living room,
subdued him, and again forced oral sex upon him.  The defendant argued
that he could not be convicted of violating § 3253(a)(9) because his
conduct amounted to one, continuous, brief episode of sexual contact.  We
disagreed, noting that the boy’s escape into another room between the sexual
assaults was “an intervening event” that gave the defendant “sufficient time
between the commission of the two acts to reflect upon what he was doing and to
recommit himself to sexually assaulting the child who had escaped.”  Fuller,
168 Vt. at 400, 721 A.2d at 479.
¶ 10.        
In so ruling, we
expressly stated that the defendant’s reliance on Perillo was
“misplaced.”  Id.  In addition to pointing out that Perillo
involved a lewd-and-lascivious-conduct statute rather than a statute based on
repeated sexual assaults, we noted that “Perillo’s actions happened close in
time, they were uninterrupted and occurred in the same geographic location, and
there was no evidence suggesting any time between touches for Perillo to
reflect on his conduct and recommit himself to abusing the victim, thereby
making it more likely that his actions constituted one continuous lewd
act.”  Id. at 401, 721 A.2d at 480.  Thus, in Fuller,
we did not backtrack from Perillo or call into question its holding;
rather, we cited the case as good law but distinguished it on its facts, which
are very similar to those in the instant case.[1]
¶ 11.        
Nor is there a trend in
other jurisdictions that is inconsistent with Perillo, as the State
claims.  Indeed, some of the cases that the State relies upon are not as
favorable to its position as claimed.  For example, in Craun v. State,
762 N.E.2d 230, 232 (Ind. Ct. App. 2002), the defendant was convicted on two
counts of child molestation based on two separate incidents separated by more
than a month, and the appellate court considered whether the trial court erred
in admitting evidence of prior bad acts.  The case does not even directly
address the issue at hand.  Nor does Jagnneauz v. State, No.
10-05-00350-CR, 2006 WL 2507339 (Tx. Ct. App. Aug. 30, 2006) (unpub. mem.),
another case relied upon by the State, which involved the defendant touching
different intimate body parts of the victim over the course of a year. 
Although the court indicated that the defendant’s conviction on one count did
not bar conviction on the other count “because touching of the breast involves
distinct conduct from touching of the genitals,” there was no indication that
the conduct occurred during a single incident.  Id. at *3.  In
another case relied upon by the State, the court affirmed consecutive sentences
on three counts of gross sexual imposition because the evidence demonstrated
“that there was a sufficient passage of time between each and there was
intervening conduct by appellant between each incident.”  State v.
Brindley, No. 01AP-926, 2002 WL 1013033, ¶¶ 8, 11 (Ohio Ct. App. May 21,
2002) (stating that offensive sexual contact under statute may be treated as
separate offenses if evidence demonstrates either passage of time or
intervening conduct by perpetrator or touching two separate body parts “in an
interrupted sequence”).
¶ 12.        
Other cases cited by the
State construe statutes completely different from Vermont’s
lewd-and-lascivious-conduct statute and thus have limited relevance and
persuasive value.  See, e.g., Commonwealth v. Robinson, 931 A.2d
15, 25 (Pa. Super. Ct. 2007) (affirming defendant’s convictions for two
separate criminal acts—touching the victim’s breasts and touching her
vagina—that violated two separate criminal statutes, one of which prohibited
corruption of minors and the other indecent assault); State v. Suarez,
736 P.2d 1040, 1042 (Utah Ct. App. 1987) (affirming defendant’s conviction for
two separate offenses that required proof of different elements within same
statute, based on him putting his mouth on victim’s breasts and then touching
victim’s genitals); De’Armond v. Commonwealth, 654 S.E.2d 317, 320-21
(Va. Ct. App. 2007) (concluding that applicable statute supported segregation
of three separate offenses based on defendant putting child’s hand on his
penis, touching child’s breasts, and touching child’s vagina).  Finally,
in Baker v. Gearinger, 293 F.3d 1353 (11th Cir. 2002) (per curiam), the
court affirmed dismissal of the petitioner’s habeas corpus petition based on
its conclusion that his conduct of fondling the victim’s breasts, fondling her
vagina, and placing his penis between her legs could each independently be
considered immoral acts done for his arousal.  The court’s brief per
curiam opinion does not, however, present a clear time-frame and context for
the touching to compare to Perillo and the instant case.
¶ 13.        
On the other hand, cases
in other jurisdictions, some relatively recent, provide support for our holding
in Perillo.  For example, in Eaddy  v. State, 789 So. 2d
1093 (Fla. Dist. Ct. App. 2001) (per curiam), the defendant was charged with
separate counts of lewd assault based on him fondling the victim’s breasts and
vagina during a single episode.  The court stated that in “deciding
whether multiple acts can be charged in a single count, the spatial and
temporal aspects of the multiple occurrences must be analyzed in order to
determine whether the defendant had time to pause, reflect, and form a new
criminal intent between the occurrences.”  Id. at 1095.  The
court concluded that the state had failed to demonstrate that the defendant’s
fondling of the victim’s breasts and vagina during a single episode amounted to
two separate offenses under the above test; accordingly, the court merged the
two counts to assure that the defendant was free from double jeopardy.  Id.;
see also People v. Williams, 24 Misc.3d 131(A), 2009 WL 1924794, at *1
(N.Y. App. Term June 29, 2009) (stating that although defendant touched more
than one intimate area of the victim, he could not be charged with separate
counts of sexual abuse because “the conduct constituted but a single,
uninterrupted occurrence” of sexual contact).
¶ 14.        
Similarly, in Cullen
v. United States, 886 A.2d 870 (D.C. 2005), the defendant was convicted of
multiple counts of misdemeanor sexual abuse based upon evidence that he placed
his mouth in contact with the victim’s inner thigh and breast during a brief
interval of time.  Citing Perillo, the court stated it was “not
convinced that the legislature intended to provide for a separate offense for
the touching of multiple enumerated body parts during a single event when there
is no evidence that a defendant has reached a new fork in the road or acted in
response to a fresh impulse.”  Id. at 873.
¶ 15.        
Our review of the above
cases demonstrates that this Court has not backed away from Perillo and
that there is no trend in other jurisdictions inconsistent with our holding in Perillo. 
Moreover, the State has not demonstrated that, in the seventeen years since we
issued Perillo, our holding has “undermined the public welfare, wrought
individual injustice, or impeded the administration of justice.”  DeSantis
v. Pegues, 2011 VT 114, ¶ 43, ___ Vt. ___, ___ A.3d ___ (Johnson, J,
concurring).  As we have stated before, this Court is not a slavish
adherent to the principle of stare decisis, but we will not deviate from
policies essential to certainty, stability, and predictability in the law
absent plain justification supported by our community’s ever-evolving circumstances
and experiences.  See State v. Berini, 167 Vt. 565, 566, 701 A.2d
1055, 1056 (1997) (mem.) (concluding that State failed to offer new evidence or
persuasive rationale to justify overruling previous case).  No such
showing has been made here.  Accordingly, we decline the State’s
invitation to overrule Perillo, and thus, we affirm the trial court’s
order compelling the State to merge the two counts in this case.
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 





[1]
The State fares no better with the three-justice panel decisions upon which it
relies.  Such decisions may be cited for their “persuasive authority” but
are “not considered as controlling precedent.”  V.R.A.P. 33.1(c). 
All three of the cited cases involve a petitioner’s appeal from the dismissal
of a petition for post-conviction relief that was based upon a claim of
ineffective assistance of counsel.  In all three appeals, we rejected the
claim that the petitioner’s attorney was ineffective for not challenging multiple
charges for a single episode of sexual misconduct.  In In re Powers,
we stated that the petitioner’s actions were “clearly distinguishable” from
those of the defendant in Perillo because there was “no intervening
event” in Perillo, as there was in Powers, where the petitioner
fondled the victim on multiple occasions between changes of bathing
suits.  No. 2001-226, 2002 WL 34424332, at *2 (Vt. Jan. 30, 2002) (unpub.
mem.), available at: http://www.vermontjudiciary.org/d-upeo/upeo.aspx. 
Similarly, in In re Cleary, we found unsustainable any possible merger
theory regarding multiple charges of sexual misconduct because “a substantial
lapse of time and several material events intervened between the time
petitioner initially fondled the victim’s breasts, charged as lewd and
lascivious conduct, and when he attempted sexual contact without her
consent.”  No. 2006-513, 2007 WL 5313366, at *2 (Vt. Dec. 19, 2007)
(unpub. mem.), available at: http://www.vermontjudiciary.org/d-upea/upeo.aspx.
 
Finally, in In re Kenyon, the petitioner
digitally penetrated the victim’s vagina for about five minutes and then
engaged in nonconsensual sexual intercourse with the victim for almost half an
hour.  We concluded that, although the second act closely followed the
first one, “the substantially different nature of the acts plainly
demonstrate[s] a separate intent to recommit to a second assault.”  No. 2003-324,
2004 WL 5582107, at *3 (Vt. Sept. 1, 2004) (unpub. mem.), available at http://www.vermontjudiciary.org/d-upeo/upeo.aspx.
Although Kenyon did not cite or attempt to distinguish Perillo,
the decision is consistent with Perillo and the instant case, neither of
which involved the commission of separate acts of a “substantially different
nature” over a time span that demonstrated the defendant’s intent to recommit
to a second assault.  In short, none of the three-justice-panel decisions
relied upon by the State, nor any other decision of this Court, has backtracked
or called into question our decision in Perillo.



