You need this many jurors . . . for now

State v. Bellanger, 2018 VT 13

By Elizabeth Kruska

The facts of this case can be summarized very briefly. Mr. Bellanger was charged with several various counts of sexual assault for having performed and demanded performance of sexual acts with a minor child. The minor child was between nine and ten years old at the time, and lived in the same house with Mr. Bellanger.

The case proceeded to trial on five counts. On the first day of trial, two counts were dismissed. He was acquitted of one count and convicted of two: repeated aggravated sexual assault of a child and lewd or lascivious conduct with a child. The child testified at trial and detailed the various acts that occurred. Mr. Bellanger was convicted and sentenced to a total sentence of twenty-seven years to life. He appeals on four separate issues, and SCOV affirms.

The first issue has to do with jury unanimity with respect to the count of repeated aggravated sexual assault. The state has to prove every element, and in this particular count, one element to be proven is the element of “repeated.” That means the state has to prove that the alleged aggravated sexual assault happened more than once. It also means that the jury has to agree unanimously on which acts were actually proven beyond a reasonable doubt.

The law is pretty clear that in a multiple-act charge, the state has to specify the act for which it seeks a conviction. Or the law requires an instruction that the jury has to be unanimous in deciding which act supports a conviction. The inquiry here, though, is whether the evidence presented materially distinguishes alleged multiple acts from the others.

In this case, the child described four different incidents. They were different kinds of contact and had different surrounding details. SCOV reasons these differences were sufficient because the details materially distinguish one instance from another. It might be a different situation if the child was not able to produce these kinds of details. That happens sometimes. A person suffering years of repeated sexual abuse may blur together different instances and different details.

Here, because there were clear, separate instances, SCOV also concludes there should have been a unanimity instruction for the jury to determine whether the state proved the element of “repeated.” Without such an instruction, there’s a danger that the jury, as a whole, agrees repeated acts occurred, but doesn’t unanimously agree on which acts occurred.

The problem for Mr. Bellanger is that the error here is insufficient to rise to the level of a reversal. Mr. Bellanger did not object sufficiently to the jury instructions on the ground that a specific unanimity instruction was necessary. In the absence of a sufficient objection, the trial court doesn’t know what the party’s issue is and can’t take steps to make an appropriate ruling. Therefore, SCOV reviews for plain error – that is, that the court’s error was its own and was so clearly an error it must be reversed. This is a high bar.

In a plain-error review, SCOV has to look at the instructions in light of the record as a whole and determine whether the error results in a miscarriage of justice. Was there an error? Was it obvious? Did it affect the defendant’s substantial rights and lead to prejudice? Did that error seriously affect the fairness, integrity, or reputation of judicial proceedings? If so, and if there’s a reasonable probability the error itself affected the outcome of the trial, then that’s plain error. If not, it isn’t. Like I said – it’s a high bar.

In climbing the mountain that is plain error, it’s up to the defendant to show it’s more than just a “logical possibility” that the jury wasn’t unanimous in its verdict. Because the defendant’s defense strategy appeared to be based on the child’s credibility, SCOV finds it reasonable that if the jury agreed the child was credible in her description of one incident, then they’d find her credible in her description of all the incidents.

Moving on, Mr. Bellanger also argues that the evidence presented at trial was insufficient to support the elements. First, he argues that it was error for the court to issue an instruction that the jury could presume non-consent on the basis of the child’s age, and that the state did not elicit sufficient evidence to prove that Mr. Bellanger and the ten-year-old child were not married to each other.

I’m going to Monday morning quarterback this prosecutor for one second. How flibberty-gibbet hard is it to ask the ten-year-old – you know, the one who you just talked to about being repeatedly sexually assaulted – if she was married to the defendant? Not. It is not hard. You say this: “Hey, this seems like a silly question, but were you and he married?” And guess what? The kid will say no. Know why? Because she was ten. And that will be sufficient evidence and it will be credible (because nobody believes they were married because cf earlier argument that she was ten) and you will not have to deal with this argument on appeal. Thank you for coming to my Ted Talk.

There are several beautifully-written paragraphs in the opinion which I will crudely sum up: under Vermont law it is okay to presume that someone under 16 did not provide consent. This is long-settled Vermont law. We have a carve-out statute that deals with statutory rape; this sets forth certain circumstances under which a minor can legally consent to sexual acts.

The age of consent has changed over the history of our republic. Interestingly, SCOV cites Blackstone, noting “law has generally held children under ten cannot legally give consent.” If I remember correctly, we’re talking about a kid who was…. nine at the time of some of the acts she testified about. My cursory review of numbers suggests that nine is one less than ten. In any case, as the age of consent has been raised, exceptions have been added. One permits consent between married minors. The other permits consent between actors who are 15 and 18.

SCOV says these exceptions don’t matter because “even under the Elizabethan understanding of consent and that era’s expectations regarding childhood” the child in this case would have been incapable of providing consent. And with respect to the requirement the jury find that they were not married, although the state didn’t explicitly elicit the evidence I suggested above, SCOV found the record was full of other evidence that would establish the various household members’ roles within their family. Significantly (and I sort of like how this was saved until paragraph 32), the child’s mother testified she was engaged in a sexual relationship with Mr. Bellanger. This would be an entirely different set of facts if the mother was engaged in such a relationship with her nine-year-old daughter’s husband.

Mr. Bellanger also made an Eighth Amendment argument regarding his sentence. Although in some circumstances sentences for sex offenses have gotten lighter as society has become more accepting of certain sexual behavior (between willing teenage participants, for example), some sentencing for serious sex offenses has gotten tougher. The changes in the law which make sentences more severe were done by the legislature making policy choices based on our society’s concern for the protection of kids.

Mr. Bellanger’s last argument has to do with the closing argument presented by the prosecutor. When it comes to closing arguments, attorneys are allowed to argue and persuade (or, at least try to persuade) using the facts elicited at trial. But what we can’t ever do is to ask the jurors to try to put themselves in a party’s position. Because that’s not the jury’s job. The jury’s job is to determine whether the state proved its case, not whether they have empathy for a participant in the case.

SCOV says the prosecutor didn’t actually ask the jury to put themselves in the child’s shoes, but rather that what the prosecutor did was try to point out how the child was credible. The prosecutor pointed out the child was eleven at the time, that she had to speak in public, and she had to tell private details – where maybe she didn’t know exactly the right words – to a room full of strangers.

Relatedly, Mr. Bellanger argued that the prosecutor erred by adding her own opinion about the child’s credibility. First, by saying the child had no reason to lie, and second that the child’s detailed knowledge supported a finding that she was truthful.

SCOV first notes that Mr. Bellanger didn’t object to these statements at the time they were made. Second, although the prosecutor essentially said that there’s no way the child would know those details unless those acts occurred, the prosecutor herself didn’t overtly say “I believe this kid and so should you.” Taken as a whole, although there were statements that could be objectionable, as a whole there was no error. And since there was no objection this is a plain-error review. As noted above, plain error is a high bar to cross, and this isn’t enough.