State v. Hazelton, 2009 VT 93, 186 Vt. 342

Summary

The Vermont Supreme Court affirmed Sherrill Hazelton’s convictions and sentence for sexual assault. The court held that trying the defendant on two multiplicitous sexual-assault counts was error, but that dismissing one conviction and the strength of the evidence rendered the error harmless beyond a reasonable doubt. The court also upheld expert testimony concerning delayed disclosure by sexual-assault victims and rejected a per se rule barring a greater sentence after retrial following a successful appeal.

Holdings

1. The counts under 13 V.S.A. § 3252(a)(1)(A) and § 3252(a)(3) charged the same offense and were multiplicitous. Defendant could not properly be convicted or sentenced on both counts, and the trial court erred by failing to require the State to elect one count before trial.
2. The trial court's failure to require the State to elect one count was harmless beyond a reasonable doubt because the evidence supporting the remaining conviction was very strong and the effect of the multiplicitous counts on the jury was de minimis.
3. The trial court did not abuse its discretion by admitting expert testimony that delayed disclosure was consistent with the profile of sexually assaulted children, because the testimony could assist the jury in evaluating the complainant's credibility and did not directly vouch for her truthfulness.
4. The nineteen-to-twenty-year sentence imposed after retrial did not violate federal or Vermont due process, and the court declined to adopt a per se rule prohibiting any increased sentence after a successful appeal.

Questions Presented

1. Whether the trial court erred by allowing the State to try defendant on two multiplicitous sexual-assault counts after the prior decision held that the counts charged the same offense.
2. Whether the error in permitting the State to proceed on both counts was harmless beyond a reasonable doubt.
3. Whether the trial court improperly admitted expert testimony concerning delayed disclosure and the profile of sexually assaulted children.
4. Whether imposing a greater sentence after retrial following defendant's successful appeal violated federal or Vermont due process or required adoption of a per se prohibition on increased sentences.

Disposition

affirmed