Defendant’s Sexual Assault Conviction Vacated on Double Jeopardy Grounds; Sentence for Conviction for Sexual Assault of a Vulnerable Adult Upheld

In State v. Breed, 2015 VT 43 (March 13, 2015), the Vermont Supreme Court vacated a criminal defendant’s conviction for sexual assault on double jeopardy grounds, but upheld the sentence for his conviction for sexual assault of a vulnerable adult because the sentence was appropriate.

Issue: Defendant appeals his jury convictions for sexual assault and sexual assault of a vulnerable adult.

Holding: Vacated the sexual assault conviction on double jeopardy grounds, but affirmed the conviction and sentence for sexual assault of a vulnerable adult.

More Detail: 1) The Court found no plain error in allowing a 3-week separation period between jury selection and trial, where defense counsel acquiesced to the trial date, where the court properly admonished the jury pre- and post- the separation period, and where Defendant failed to assert its right to a supplemental exam of the jury. (However, the Court still offered a “best practices protocol” for such delays). 2) The Court vacated Defendant’s conviction for sexual assault because, under the Blockburger double jeopardy test, every element required for a sexual assault conviction was also required for a conviction of sexual assault of a vulnerable adult (and found that the different punishments for the two crimes does not show that the legislature intended cumulative punishments). However, the Court rejected Defendant’s request for resentencing on the “sexual assault of a vulnerable adult” charge because it was clear that the court considered the two sentences separately and intended to give Defendant a jail sentence in any case.

Dissent: J Dooley disagreed with the Court’s double jeopardy analysis.