State v. Lafayette

312 A.3d 1025

2024 VT 6

STATE of Vermont

v.Denzel LAFAYETTE

No. 23-AP-106

Supreme Court of Vermont.

February 16, 2024

On Appeal from Superior Court, Bennington Unit, Criminal Division Cortland Corsones, J.

Evan P. Meenan¹, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Allison N. Fulcher, Martin, Delaney & Ricci Law Group, Barre, for Defendant-Appellant.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

CARROLL, J.

¶ 1. Defendant Denzel Lafayette was convicted by a jury of sexual assault and carrying a firearm while committing a felony. In this appeal, he argues that the evidence presented by the State was insufficient to support his convictions and the trial court committed plain error by not instructing the jury that it had to find that the carrying of the gun was related to thcommission of the sexual assault. Defendant also challenges three probation conditions imposed by the trial court. We affirm the convictions, but remand for the trial court to strike part of one probation condition and to make findings, modify, or strike portions of the other two challenged conditions.

¶ 2. In September 2020, defendant was charged with sexual assault, sexual exploitation by luring a child, and carrying a weapon while committing a felony.² A two-day trial was held in July 2022.

¶ 3. The State presented the following evidence at trial. In August 2020, a Bennington police officer met with the complainant, K.V., and her parents at the Bennington police department. They told the officer that a twenty-two-year-old man had climbed through the window of K.V.’s father’s residence and had sexual intercourse with K.V. After obtaining written statements from K.V. and her parents, the officer forwarded the information to a detective.

¶ 4. A few days later, the detective and an employee of the Department for Children and Families interviewed K.V. They learned that K.V. had been communicating with a man later identified to be defendant on Facebook. The detective obtained access to K.V.’s Facebook account. He found messages sent between K.V. and defendant and a video sent to K.V. in which defendant, wearing a blue Champion hooded sweatshirt, filmed himself pulling a gun out of his waistband.

¶ 5. In the Facebook messages, K.V. and defendant discussed meeting at her home one evening in August of 2020. K.V. expressed fear that she would get caught and asked defendant to come a different night. Defendant stated, "We not fucking imma just slide through." In response, K.V. stated, "but I wanna fuck." They exchanged several more messages in which K.V. asked defendant not to come to her house and then apparently changed her mind.

¶ 6. A neighbor of K.V.’s father testified that one night in mid-August of 2020, he went outside his trailer for a cigarette at around 2:30 or 3:00 in the morning and saw an unfamiliar vehicle. The neighbor reported this to police, but they did not find the vehicle. The neighbor stayed outside his trailer and heard noises that sounded like a creaking window. He then saw a man wearing Champion-brand clothing run behind a car in the driveway near K.V.’s father’s trailer. He called the police again, and they apprehended the man, who told them he was waiting for a ride. The man continued to walk around the neighborhood, at one point crossing into the neighbor’s front yard. The neighbor told the man to leave the trailer park. The man told the neighbor that he was "hot," which the neighbor interpreted to mean that he might have a gun. The man then walked away and the neighbor did not see him again.

¶ 7. K.V. testified that she was born in August 2005. In August 2020, shortly after she turned fifteen years old, she was communicating with an individual later identified to be defendant on Facebook, with whom she connected through mutual friends on the platform. They began chatting every day, and at some point, the conversation turned sexual. K.V. told defendant her name and age. He told her that he lived in North Adams, Massachusetts. They began to make a plan for him to come visit her in Vermont. They settled on a date and agreed that defendant would arrive at 2:30 in the morning.

¶ 8. On the night in question, K.V. was staying in her room at her grandmother’s trailer, where she, her father, and her siblings lived. Her father and grandmother had gone to bed. Defendant came to her window and asked her to hold his gun. He showed her the gun, which she described as a "silver, blackish, like, revolver." She refused to hold it. He then climbed in through her window. They sat on her bed and talked for about five minutes. Defendant started kissing her. Defendant was wearing a blue Champion sweatsuit. He took her pants off, and she got on top of him. K.V. testified that they kissed some more, then they "had sex." The prosecutor asked, "did he put his penis inside your vagina?" K.V. stated, "Yes." They stopped when they heard voices outside her window. Defendant "started freaking out," and K.V. told him to hide in her closet. A couple of minutes later, she saw flashlights through the window. She did not know who was outside. After the voices went away, defendant got out of her closet and returned to the bed. K.V. told him that he needed to leave, and he refused. She told him that she would scream if he didn’t leave, after which he left. K.V. testified that the gun defendant displayed in the Facebook video was the same gun that he brought to her home.

¶ 9. After the State rested, defense counsel moved for judgment of acquittal on all three counts. The court granted the motion as to the luring count, but denied acquittal on the counts of sexual assault and carrying a weapon while committing a felony. Defendant did not testify or present any witnesses. The jury found defendant guilty of both remaining counts. At a sentencing hearing in February 2023, the court imposed a sentence for the sexual assault conviction of five years to life, all suspended except for five years, and a concurrent sentence of one-to-four years to serve for the carrying-a-weapon conviction. This appeal followed.

I. Sufficiency of the Evidence

[1–4] ¶ 10. Defendant first argues that the trial court erred in denying his motion for judgment of acquittal because the evidence presented by the State was insufficient to support either of his convictions. We review the trial court’s denial of a motion for judgment of acquittal de novo. State v. Hale, 2021 VT 18, ¶ 8, 214 Vt 296, 256 A.3d 595. Our task is to determine whether the evidence, viewed in the light most favorable to the State and without considering any modifying evidence, "is sufficient to fairly and reasonably convince a trier of fact that the defendant is guilty beyond a reasonable doubt." State v. Stephens, 2020 VT 87, ¶ 10, 213 Vt. 253, 250 A.3d 601 (quotation omitted). "A judgment of acquittal is proper only if the prosecu tion has failed to put forth any evidence to substantiate a jury verdict." State v. Johnson, 2013 VT 116, ¶ 26, 195 Vt. 498, 90 A.3d 874. When reviewing the record, we are mindful that "[c]redibility questions raised by the evidence at trial are entirely within the province of the jury." State v. Hammond, 2012 VT 48, ¶ 14,192 Vt. 48, 54 A.3d 151 (quotation omitted).

A. Sexual Assault

[5] ¶ 11. To prove the sexual assault charge, the State had to present evidence beyond a reasonable doubt that defendant engaged in a sexual act with K.V. without her consent. 13 V.S.A. § 3252(a)(1). It is undisputed that K.V. was unable to consent to sex because she was under the age of sixteen. See State v. Deyo, 2006 VT 120, ¶ 23, 181 Vt. 89, 915 A.2d 249 (interpreting sexual assault statute to mean that "apart from an exceedingly narrow exception for married people under age sixteen, minors cannot consent to sexual acts in Vermont"). Accordingly, the issue before us is whether the State proved that defendant engaged in a sexual act with K.V. A "sexual act" is defined by the sexual assault statute as "contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any intrusion, however slight, by any part of a person’s body or any object into the genital or anal opening of another." 13 V.S.A. § 3251(1).

¶ 12. K.V.’s testimony regarding this element, though brief, was sufficient for the jury to find beyond a reasonable doubt that defendant engaged in a sexual act with her. She testified that she and defendant "had sex." When asked by the prosecutor whether defendant put his penis in her vagina, she replied, "yes." She also texted defendant prior to their encounter, "but I wanna fuck." The police detective who investigated the case testified that K.V. identified defendant as the individual who "sexually assaulted" her. Defendant also told K.V.’s mother that he was in the wrong for "having sex with" K.V. These statements were sufficient for the jury to infer that penis-to-vulva contact occurred and to satisfy that element of the charge. See State v. Desautels, 2006 VT 84, ¶ 8, 180 Vt. 189, 908 A.2d 463 (holding that victim’s testimony that she and defendant "had sex" or "had sexual intercourse" and that defendant "raped" her, and that sex meant that defendant’s penis went inside her, were sufficient to satisfy sexual-act element of sexual assault charge). The trial court therefore did not err in denying de- fendant’s motion for judgment of acquittal on the sexual assault charge.

B. Carrying a Weapon While Committing a Felony

[6–8] ¶ 13. Defendant also challenges the sufficiency of the evidence to support his conviction for carrying a weapon while committing a felony, arguing that there was no evidence of a relationship between the carrying of the gun and the sexual assault. Section 4005 of Title 13 makes it a crime for a person to "carr[y] a dangerous or deadly weapon, openly or concealed, while committing a felony." In State v. Carter, our principal decision interpreting § 4005, we explained that the purpose of the statute was...