State v. Hazelton

¶ 1. Defendant appeals from his conviction and sentence following a jury trial on two counts of sexual assault. He claims on appeal: (1) that the court improperly allowed the State to introduce hearsay evidence against him; (2) that the court erred in allowing him to be prosecuted for two crimes arising out of a single act; and (3) that his concurrent sentences of eighteen to twenty years are illegal because, after allowing for good time off the maximum, the minimum term could match or exceed the maximum term. We reverse and remand on defendant’s first point, respond to his second issue as germane to retrial, and do not reach his third issue.

¶ 2. Defendant was charged with sexually assaulting S.L., the niece of his girlfriend, while babysitting S.L. and her younger sister. S.L. was ten years old at the time of the alleged assault. S.L. testified that she had been playing outside with some other children and that when she went into the house to use the bathroom defendant sexually assaulted her by use of force. There was no other witness or evidence to corroborate the alleged assault. Defendant testified and denied the allegations.

I.

¶ 3. Defendant’s first claim of error is that the trial court allowed the State to bolster S.L.’s credibility with hearsay after defense counsel impeached her testimony at trial with a prior inconsistent statement made in an earlier deposition. S.L.’s statements at issue — prior descriptions of the assault to the investigating police officer and to her grandmother — were proffered by the State on the theory that prior consistent statements would allow the prosecution “to argue that there were no other inconsistencies.” The State cited State v. Church, 167 Vt. 604, 708 A.2d 1341 (1998) (mem.), as authority for admission of prior consistent statements to support the credibility of a witness impeached by a prior inconsistent statement.

¶ 4. Defendant argues that the trial court improperly admitted the testimony in reliance on our decision in Church, which allowed admission of prior consistent statements of a witness, not as substantive nonhearsay evidence under V.R.E. 801(d)(1)(B), but for rehabilitation after the witness was impeached by prior inconsistent *122statements. Id. at 605-06, 708 A.2d at 1342. Defendant posits that Church should be limited or overruled. For the reasons discussed below, we agree with defendant that the trial court’s application of Church to the instant case was overly broad and erroneous.

¶ 5. At trial, S.L. testified that while playing kickball, she entered defendant’s home to use the bathroom when he grabbed her by the arm, brought her to his bedroom, undressed her, forced her face-down onto the bed, and held her down with one hand on her neck and the other under her stomach propping her up. She testified that she felt something go into her “baby hole,” that it hurt, and that defendant made moaning noises. She said that after the assault she got her clothes, ran into the bathroom, and noticed she was bleeding from between her legs and that there was “white mushy stuff’ on her. She stated that she cleaned herself with toilet paper and wrapped toilet paper around her underwear to stop the blood from leaking through. She also testified that after the assault, and before she went into the bathroom, defendant told her not to tell anyone and that if she did he would “hurt people [she] cared for.” S.L. testified that afterwards she had nightmares about defendant, continued to spot blood for a few days (when she had not yet begun menstruating), and told her grandmother about the incident around Easter, some six months later.

¶ 6. On cross-examination, defense counsel sought to impeach S.L. by highlighting inconsistencies between her trial testimony and her earlier deposition testimony. Defense counsel asked S.L. whether any blood got onto her clothing, and S.L. responded that some blood got onto her underwear and she threw them away. Defense counsel then presented S.L. with her deposition testimony, where counsel asked whether she had bled onto her underwear, and S.L. answered: “No, not that I could recall.”

¶ 7. After S.L. testified, the State presented testimony from Dr. Scattergood, who examined S.L. after she disclosed the alleged assault to her grandmother. The doctor related that during a sexual assault examination, S.L. reported that defendant “put his thing inside her, she had some spotting for two to three days, [and] afterward she was sore.” Defendant raised no objection to this portion of the doctor’s testimony.

¶ 8. After the doctor’s testimony, the State proffered the investigating officer who took S.L.’s report of the assault, and S.L.’s grandmother who was the first person S.L. told about the assault, to testify about what complainant previously told them had happened at *123defendant’s house. Defendant objected to the witnesses repeating S.L.’s prior statements as both inadmissible hearsay and improper rehabilitation. The State argued that the prior consistent statements were not offered for the truth of the matter asserted, but to support S.L.’s credibility in response to defendant’s effort to impeach the witness with her prior inconsistent statements, and cited Church in support.

¶ 9. Defendant argued that repetition by others of S.L.’s versions of the assault would not rebut the inconsistency drawn out by the defense, and the State made no proffer that either witness’s testimony would address the particular inconsistency raised by the defense: that S.L. testified at trial that there was blood on her underwear, but testified at an earlier deposition that she recalled no such blood. Agreeing that Church appeared to follow a rationale of admitting prior consistent statements for the jury “to understand that these inconsistencies are minor with how many consistencies there have been in the past,” the trial court allowed the prior consistent statements for that purpose. This ruling was incorrect, and so we revisit Church to clarify the use of prior consistent statements following attack on a witness’s credibility by prior inconsistent statements. We do not here attempt to exhaust the circumstances in which the trial courts may find the admission of consistent statements relevant to rehabilitate a witness’s credibility after impeachment. As each case may present unique circumstances, the application is best left to the sound discretion of the trial courts. Nevertheless, it must be said that Church does not stand for the proposition that, whenever an inconsistency is raised as to one detail of a story, the opposing party may introduce prior out-of-court statements consistent with other aspects of a witness’s testimony, without any rebuttal force to the contradiction or to the source of the impeachment.

¶ 10. In Church, a child-sexual-assault case where evidence of recantation was introduced as a prior inconsistent statement to impeach the child’s testimony, the defendant argued that it was error to allow a witness to testify to the child’s prior consistent statements outside of the limited circumstances outlined in V.R.E. 801(d)(1)(B). 167 Vt. at 605, 708 A.2d at 1342; see also V.R.E. 801(d)(1)(B) (providing that a statement is not hearsay if consistent with the witness’s trial testimony and “offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive”). *124Rule 801(d)(1)(B) was inapplicable in Church, because the statements were not offered as substantive nonhearsay evidence under that rule, but were offered solely to rehabilitate the witness after her credibility was impeached by an apparent recantation. 167 Vt. at 605, 708 A.2d at 1342 (“V.R.E. 801(d)(1)(B) does not govern the admissibility of prior consistent statements to rehabilitate a witness; it ‘merely allow[s] a certain subset of these statements to be used as substantive evidence of the truth of the matter asserted.’” (quoting United States v. Ellis, 121 F.3d 908, 919 (4th Cir. 1997), cert. denied, 522 U.S. 1068 (1998))).

¶ 11. That the evidence is not offered under Rule 801(d)(1)(B) for substantive purposes does not end the inquiry into the relevance of prior consistent statements for rehabilitative purposes, nor their admissibility. As we stated in Church, a prior consistent statement offered to rehabilitate a witness “is admissible when it has ‘some rebutting force beyond the mere fact that the witness has repeated on a prior occasion a statement consistent with his trial testimony.’” 167 Vt. at 605, 708 A.2d at 1342 (quoting Ellis, 121 F.3d at 920) (emphasis added). As observed in Ellis, prior consistent statements have significant rebutting force and countering effect where they “serve to clarify whether the impeaching statements really were inconsistent within the context of the interview, and if so, to what extent”; where they are “offered to clarify or amplify the meaning of the impeaching inconsistent statement”; where they “bear on whether, looking at the whole picture, there was any real inconsistency”; or where, in accord with the “Doctrine of Completeness,” the one against whom part of a statement has been admitted into evidence seeks to complement the evidence by putting in the remainder of the statement to demonstrate a “complete understanding of the total tenor and effect of the utterance.” 121 F.3d at 920 (internal citations and quotations omitted).

¶ 12. The requirement that prior consistent statements used to rehabilitate a witness after impeachment by inconsistent statements must particularly dispel, explain, modify, or clarify the inconsistency is not a new concept in Vermont. See, e.g., Ronan v. Stannard, 100 Vt. 436, 438, 138 A. 729, 729 (1927) (holding that where “cross-examination was obviously an attempt to discredit the witness by showing that he had testified differently on a previous occasion.... it was proper on reexamination to show such of his former testimony as tended to modify or qualify the effect of such parts thereof as were elicited on cross-examination”); State v. Turley, 87 Vt. 163, 174, 88 A. *125562, 567 (1918) (observing the widespread repudiation of rules allowing a witness to be sustained by her corroborative prior statements after being discredited by her contradictory accounts of a transaction, but recognizing exceptions such as where the evidence is offered to dispel the inference that the witness ever made the contradictory statements).

¶ 13. While we recognize that Church might, at first glance, convey a broad application of the rehabilitative use of prior consistent statements, the predicate remains that the prior statement must have some “rebutting force” other than that the witness merely said something earlier that was the same as that part of her trial testimony that was not impeached. Church, 167 Vt. at 605, 708 A.2d at 1342. The record here reveals that the trial court believed Church was broad enough to authorize admission of prior consistent statements to bolster the testimony of a witness impeached by prior inconsistent statements, without having to specifically counter the inconsistency, and understood such rehabilitation to be particularly appropriate in the instant case where, like Church, the impeached witness was a child. In Church, the child’s prior statement, consistent with her testimony that defendant assaulted her, was allowed after a witness testified that the child recanted in an earlier conversation. Id. at 605-06, 708 A.2d at 1342. The rehabilitative evidence in Church, showing that an earlier allegation of assault was consistent with the child’s trial testimony, was no more broad than the measure of impeachment — an alleged recantation of the assault complaint. The rehabilitation in Church focused on the specific topic of the impeachment, while it also tended to rebut the credibility of the witness-declarant. In contrast, the source of the prior impeaching statement in the instant case was S.L.’s own deposition testimony about having no memory of blood on her underwear, and only a small part of the officer’s testimony confirmed that S.L. spoke of blood prior to the deposition, while her grandmother’s testimony did not mention blood at all.

¶ 14. In light of the evolution of case law disfavoring admission of prior statements solely for the purpose of repeating the same general story, the trial court incorrectly read Church to allow the State to attempt to overshadow a witness’s inconsistency with a consistent repetition of other details of the assault — as opposed to attempting to contradict, explain, modify, qualify, dispel or in any *126way address or rebut the particular inconsistency drawn from a witness. Cf. United States v. Simonelli, 237 F.3d 19, 26 (1st Cir. 2001) (finding little basis for admissibility in rehabilitative questioning by the government that went beyond the specific inconsistencies where the purpose “was not to show there was really no inconsistency but to show that [the witness] did not lie about everything and that most of what else he had to say at trial was consistent with what he had said earlier to the grand jury”).

II.

¶ 15. We next address whether the trial court’s erroneous evidentiary rulings require reversal under harmless-error analysis. “When the error involves improper admission of evidence, the error cannot be harmless if there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” State v. Oscarson, 2004 VT 4, ¶ 30, 176 Vt. 176, 845 A.2d 337 (internal quotations omitted); see also State v. Catsam, 148 Vt. 366, 371, 534 A.2d 184, 188 (1987) (“[H]armless error analysis requires the reviewing court to inquire if, absent the alleged error, it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict regardless of the error.” (internal quotations omitted)). It is the State’s burden to establish beyond reasonable doubt that the jury would have returned the same verdict if the error had not occurred. State v. Goodrich, 151 Vt. 367, 377-78, 564 A.2d 1346, 1352 (1989). “The burden is a difficult one[.]” Id. at 377, 564 A.2d at 1352. Because we cannot conclude the court’s errors were harmless beyond a reasonable doubt, we reverse and remand for a new trial.

¶ 16. To calculate whether the error was harmful, this Court considers the following factors: “‘the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.’” State v. Lynds, 158 Vt. 37, 42, 605 A.2d 501, 503 (1991) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). The State argues that any error in admitting the grandmother’s and officer’s testimony was harmless beyond a reasonable doubt because defendant did not object to the same evidence when it came in through the examining physician’s testimony, so the jury would have heard it anyway, and the evidence did *127not involve the introduction of additional evidence, only repetition of facts already known to the jury.

¶ 17. First, we review the testimony of the law enforcement officer. The officer repeated many of the same facts S.L. stated in her direct testimony, albeit in briefer fashion — that she went inside to use the bathroom during a kickball game, defendant immediately grabbed her, brought her to his bedroom, removed her clothes, threw her onto the bed, held her down with one hand on her neck and the other under her pelvis, raped her, and told her he would hurt people she loved if she told anyone.

¶ 18. The grandmother’s testimony was more summary and brief than the officer’s. She stated that S.L. told her “they had been out playing, [S.L., her sister, and defendant’s son], and [S.L.] went in to go to the bathroom, and [defendant] grabbed her and threw her down on the bed face first and held her down by the neck, pulled down her clothes and raped her.” Like the testimony of the officer, none of the information offered any embellishment or more detail than S.L.’s own testimony on direct and cross-examination.

¶ 19. We agree with the State that the evidence was cumulative in so far as no new facts about the alleged assault were offered by the officer or the grandmother. The record reflects that S.L. was the most articulate witness on the details of the alleged assault, and the officer and grandmother added no substance or new information to the child’s testimony. The doctor previously testified, without objection, to S.L.’s most damaging prior statement — that defendant “put his thing inside her.” Prior consistent statements are inherently cumulative, so whether the evidence is cumulative is not the end of the inquiry under the Van Arsdall factors. The factors most relevant to harmless-error analysis in this case are the importance of the evidence to the State’s case and the overall strength of the State’s case. The importance of the testimony to the prosecution was not in the particular factual information presented, but the effect of the additional testimony in improperly bolstering S.L.’s credibility.

¶ 20. If believed, the testimony of S.L., alone, was enough to convict defendant. The express purpose of the grandmother’s and the officer’s testimony to the prosecution’s case was to bolster the believability of S.L.’s version over defendant’s version of events. The State argued extensively to the trial judge that Church allowed it to show how consistent S.L. had been at other points to balance the particular inconsistencies raised in cross-examination. Nothing in the record *128reflects that the child’s version was inherently credible, or defendant’s denial necessarily implausible. With credibility being the key ingredient in this swearing contest between complainant and defendant, and absent any independently corroborating evidence of the assault, we cannot avoid a conclusion that it was reasonably possible, as intended, that the erroneously admitted testimony influenced the jury’s decision to believe S.L. Moreover, the court specifically instructed the jury that, in determining the credibility or believability of each witness, it could consider “any prior statements ... that were consistent or inconsistent with the witness’s trial testimony, the internal consistency or inconsistency of a witness’s testimony and its support or contradiction by any other evidence in the case.”1 The jury could presume from the court’s instructions that it was proper to consider the entire repeated recitation of the story as relayed by the officer and the grandmother, and which comprised the great majority of their testimony, as enhancing S.L.’s credibility.

¶ 21. Finally, we address the State’s argument that the jury already heard S.L.’s prior statements from the examining doctor that “[S.L.] said ... he put his thing inside her.” We are not persuaded that the doctor’s statements negate the prejudicial effect of the officer’s and grandmother’s testimony, or that the doctor’s testimony, as the State argues, was merely the “same” evidence. The doctor’s testimony was arguably more impressive than the testimony under objection. We cannot, however, conclude that the doctor’s statement was so independently convincing as to foreclose the possibility, beyond a reasonable doubt, that the jury’s verdict was influenced by the improperly admitted hearsay of the officer and grandmother. There would appear to be no purpose, other than improper credibility bolstering, for the jury to consider the prior-consistent-statement testimony of the officer and the grandmother. Under these particular *129circumstances, where the trial court erroneously allowed two witnesses to recite S.L.’s step-by-step version of the events for the express purposes of bolstering her credibility after defendant’s attempts to impeach her in a swearing contest, we cannot conclude that the multiple errors were harmless beyond a reasonable doubt.

¶ 22. Given our reversal of the conviction and sentence on defendant’s first issue, we need not reach defendant’s third claim of error that failure to consider speculative good-time reductions to a maximum sentence can result in an illegally long minimum sentence. We do, however, address defendant’s remaining legal argument because it is likely to arise in a new trial. See State v. Morale, 174 Vt. 213, 215, 811 A.2d 185, 187 (2002) (noting that the Court may reach issues likely to recur on remand in the interest of judicial economy).

III.

¶ 23. Defendant next contends that the court erred in allowing him to be convicted and sentenced on the two charges filed when, at most, the State’s evidence could support but one offense. The State alleged a single act of sexual intercourse with S.L., but charged two separate counts under 13 V.S.A. § 3252, which provides, in pertinent part:

(a) A person who engages in a sexual act with another person and

(1) Compels the other person to participate in a sexual act:

(A) Without the consent of the other person; or

(B) By threatening or coercing the other person; or

(C) By placing the other person in fear that any person will suffer imminent bodily injury; or

(3) The other person is under the age of 16, except where the persons are married to each other and the sexual act is consensual;

shall be imprisoned for not more than 20 years, or fined not more than $10,000.00, or both.

Count I of the State’s information charged that defendant violated § 3252(a)(3) by engaging in sexual intercourse with a person under the age of sixteen to whom he was not married. Count II charged that defendant violated § 3252(a)(1) by compelling a person to participate in a *130sexual act “without consent,” an apparent violation of subsection (a)(1)(A).

¶ 24. We agree that defendant could be convicted and sentenced for only one of the two counts charged against him. “‘When a defendant is tried in a single trial for two statutory offenses that criminalize the same conduct, whether or not a conviction and sentence may be had under each statute is a question of legislative intent, not constitutional prohibition.’” State v. Ritter, 167 Vt. 632, 632, 714 A.2d 624, 625 (1998) (mem.) (quoting State v. Grega, 168 Vt. 363, 382, 721 A.2d 445, 458 (1998)). “[W]e apply as a rule of statutory construction the test first enunciated by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932). Under this test, two offenses are considered the same offense for double jeopardy purposes unless ‘each provision requires proof of a fact that the other does not.’ Id.” Ritter, 167 Vt. at 632-33, 714 A.2d at 625. In this case, despite some surface difference, the two offenses charged against defendant are essentially the same. The substantive elements of criminal sexual contact with an unmarried minor under the age of sixteen under § 3252(a)(3) are the same as the substantive elements of sexual assault compelled “without... consent” under § 3252(a)(1)(A).

¶ 25. On cursory review, the two charges against defendant do seem facially different. While both sexual-assault crimes require proof that defendant engaged in a sexual act with another person, each offense appears to include additional elements that the other does not. Compelled sexual assault, punishable under § 3252(a)(1)(A), (B) or (C), addresses an offender who “compels” a victim to engage in a sexual act, either without consent, by threat or force, or by putting the victim in fear of immediate injury to any person. Strict liability sexual assault, or so-called statutory rape, criminalized by § 3252(a)(3), turns on whether the person engaged by an offender in a sexual act was not married to the offender and was under the age of sixteen at the time. Neither compulsion nor consent are elements of, or even relevant to, the § 3252(a)(3) offense of statutory rape, so that, typically, “[njothing more than a calendar and the person’s birth certificate are required to determine the statute’s applicability.” State v. Barlow, 160 Vt. 527, 530, 630 A.2d 1299, 1301 (1993).

*131¶ 26. While differences between the two crimes may be apparent, they are not real.2 Despite the language in § 3252(a)(1)(A) outlawing one who “[c]ompels the other person to participate in a sexual act ... [without the consent of the other person,” no actual force or compulsion is necessary to commit the offense. No greater degree of compulsion is actually required for a violation of subsection (a)(1)(A) than is included as a matter of law in the offense of statutory rape under subsection (a)(3). The victim is “compelled” to engage in a sexual act in violation of § 3252(a)(1)(A) as the result of an offender’s conduct to unilaterally engage another in a sexual act “without consent,” that is, without any indication that the victim is freely willing to participate. See 13 V.S.A. § 3251(3) (“‘Consent’ means words or actions by a person indicating a voluntary agreement to engage in a sexual act.”). The element of compulsion is satisfied by lack of consent alone. That any compulsion beyond lack of consent is not an element of § 3252(a)(1)(A) is confirmed by the statute’s explicit coverage of sexual assault compelled by actual threat, force, or intimidation in subsequent subsections 3252(a)(1)(B) and (C), as well as our holding in State v. Nash that subsections (A), (B) and (C) of § 3252(a)(1) “are separate ways by which the single offense of ‘compelling’ may be committed.” 144 Vt. 427, 433, 479 A.2d 757, 760 (1984).

¶ 27. At the time of this offense, it was long settled under Vermont law that it was legally impossible for an unmarried child under the age of sixteen to consent to sexual acts. State v. Thompson, 150 Vt. 640, 644, 556 A.2d 95, 98 (1989). Because sexual acts with a single child under sixteen years old were nonconsensual as a matter of law, such acts with such a child were necessarily “compelled” merely by the child’s incapacity to consent. “The legislature, among others, would certainly be surprised to find that sexual assault on a minor does not involve force or aggression and is consensual, even though consent by a minor is not legally possible.” Id. (citation omitted).

*132¶ 28. The rule that an underage child cannot consent to sex need not derive from statute, as suggested by the dissent, but is a part of common law. Vermont’s common law carried over from England, 1 V.S.A. § 271,3 included the statute 18 Eliz., c. 7, making it a felony to have carnal knowledge of a girl under the age of ten “with or without her consent,” and its case law establishing the legal impossibility that an underage child could consent to sex. See Coates v. State, 7 S.W. 304, 306 (Ark. 1888) (explaining that under the statute of 18 Elizabeth, “in force [similarly to Vermont] when we adopted the law of England as our own ... [t]he presumption in every such case was that the female, by reason of her tender years, was incapable of consenting ... [and] the presumption was conclusive”); 2 W. LaFave, Substantive Criminal Law § 17.4(c), at 648 (2d ed. 2003) (the rationale of the statute “was that a child under that age ‘should be regarded by the law as incapable of giving effective consent.’” (citing history related in the Model Penal Code § 213.1, cmt. at 276 (1980)). At the time of this charge, no statute altered the common law in this regard, except to extend the incapacity to consent from age ten to eleven, 1791 Haswell, p. 294, to fourteen, 1886, No. 63, § 1, and then to sixteen years of age, 1898, No. 118, § 1, with an exception for married minors added later. 13 V.S.A. § 3252(a)(3); 1985, No. 83, § 2.

¶ 29. The dissent correctly observes that the statutory definition of “consent” under 13 V.S.A. § 3251(3) nowhere excludes minors from entering into voluntary agreements to engage in sexual acts, but this statute does not alter the common law making such consent by underage children a legal impossibility. “The common law is changed by statute only if the statute overturns the common law in clear and unambiguous language, or if the statute is clearly inconsistent with the common law, or the statute attempts to cover the entire subject matter.” Langle v. Kurkul, 146 Vt. 513, 516, 510 A.2d 1301, 1303 (1986). The statute simply fails to address the issue of a minor’s legal capacity to consent, and the definition is not inconsistent with a minor’s incapacity to consent under common law. Since enactment of this statutory scheme in 1977, this Court has continued to recognize the application of common law impossibility of consent by underage minors. Thompson, 150 Vt. at 644, 556 A.2d at 98; N. Sec. Ins. Co. v. Perron, 172 Vt. 204, 216, 777 A.2d 151, 160 (2001) (“[M]inors cannot appreciate the nature and consequences of, and therefore lack the *133ability to consent to, sexual activity for purposes of Vermont criminal law.”).

¶ 30. The dissent argues that § 3254, providing that “lack of consent” is proved when the actor “[k]nows that the other person is mentally incapable of understanding the nature of the sexual act,” or “is not physically capable of resisting, or declining consent,” applies to a person engaging in sex with underage children. This supposes a legislative purpose to gauge culpability upon the accused’s subjective assessment of an underage child’s capacity to consent to sexual contact. This approach would seem to resurrect notions of “mistake” as a defense to a § 3252(a)(1)(A) charge of sexual contact with an underage child “without... consent,” which the dissent contends is an offense distinct from statutory rape. However, “sexual intercourse with a [child] under a certain age, has traditionally been considered a strict liability offense, where ‘mistake as to the age of an underage participant has been accorded no defensive significance.’” State v. Searles, 159 Vt. 525, 527, 621 A.2d 1281, 1283 (1993) (citations omitted) (observing that “Vermont has neither statutorily deviated from the traditional rule, nor done so by judicial decision.”). As pointed out in Deyo, 2006 VT 120, ¶ 20, 181 Vt. 89, 915 A.2d 249, the dissent’s reading of the statute would also appear to extend the defense of consent to repeated sexual acts between an incestuous parent and an underage child.4 We view such legislative intentions as unlikely.

¶ 31. If the Legislature really intends consent to be available as a defense for persons having sexual contact with underage *134children, and to render underage children capable of sexual consent, it must expressly so declare.5 Langle, 146 Vt. at 516, 510 A.2d at 1303.

¶ 32. The statutes defining sexual assault under § 3252(a)(1)(A), sexual assault of minors under § 3252(a)(3), or aggravated sexual assault under § 3253 did nothing to abrogate an unmarried minor’s common law incapacity to consent to sex. The succession of Vermont statutes criminalizing sex with underage children “with or without” their consent do not contradict the common law’s conclusive presumption against consent by underage children. The Legislature simply repeated this original language from 18 Elizabeth, c. 7 while extending, in stages, the age of nonconsent from ten to sixteen years of age. In State v. Sullivan we held that where the statute prohibited sexual contact with a child under the age of fourteen “with or without her consent,” and where a charge of violating another statute prohibiting “assault to commit rape” specified that the victim was under the age of fourteen, “the element of consent is eliminated” even though rape would ordinarily require proof of force against the will or without the consent of the victim. 68 Vt. 540, 543, 35 A. 479, 479 (1896). The Court also noted that the same offense was “indictable at common law.” Id. The legislative reference to “with or without consent” did not suggest that an underage child could consent to sex.

¶ 33. The holding of State v. Wheat, 63 Vt. 673, 22 A. 720 (1890), cited by the dissent is not to the contrary. Wheat was indicted and convicted for attempting to assault a female with the intent to “carnally know” her “against the will of her.” Id. at 675, 22 A. at 720. The trial court allowed the State to prove that the female was under the age of consent, and instructed the jury “that it was immaterial whether the girl consented to the attempted intercourse or not.” Id. On appeal, Wheat argued that “the statute which would have deprived him of the defense of consent if his purpose had been accomplished [i.e., statutory rape], does not deprive him of that defense as regards the attempt; and that in the absence of any statutory provision an attempt which is consented to cannot be an assault.” Id. This Court first noted that other jurisdictions had split *135on the issue, and then expressly declined to rule on it as unnecessary to the disposition of the case. Id.

¶ 34. Instead, the Court focused exclusively on the particular pleading in the indictment. As the dissent recites, the Wheat Court recognized the difference between “ordinary” rape and statutory rape, and that in the first offense “the question of age is not involved.” Id. But this was only in the context of how the crime was particularly charged in the indictment against Wheat. Id. Because the indictment charged attempted “ordinary” rape, without any mention of the age of the complainant or any other notice to the defendant that a consent defense could be precluded by virtue of the complainant’s age, this Court found that fairness to the defendant required that consent remain material while the complainant’s age should be immaterial. Id. at 676, 22 A. at 720 (“This indictment did not inform the respondent that the charge was one wherein the effect of consent might be taken away by proof of age. He might well assume that nothing but proof of consent was necessary to his defense, and so go to trial without any evidence as to the age of the person consenting.”). The Court repeatedly couched its opinion in terms of leaving open the question that it did not decide: whether proof that the victim was underage eliminated the defense of consent to a charge of attempted rape. Id. (“Even if the law permits a conviction for an attempt which is consented to, we think that in a trial on this indictment it was error to hold that consent was imma-terial____So if it were to be held that one may be punished for an unsuccessful attempt to have carnal knowledge of a female under the age of fourteen years with her consent, we think that on the charge here made proof that the female was under that age would not relieve the State from showing that the attempt was against her will. As this indictment is framed, it is the age which is immaterial, and not the fact of consent.” (Emphasis added.))6

¶ 35. Six years later, State v. Sullivan, 68 Vt. 540, 35 A. 479 (1896), answered the question left open in Wheat. Reviewing a conviction upon an indictment for assault with intent to commit rape that *136specified the victim was under the age of fourteen, we held that when the charge recites that the attempted rape victim is under the age of consent, “the element of consent is eliminated,” regardless of the element of force otherwise required for the underlying crime of rape. Id. at 543, 35 A. at 479. Ultimately, Wheat is inapposite to the dissent’s position, and in this case, as in Deyo, the majority follows the law and logic of Sullivan to eliminate consent as irrelevant to prohibited sex with an underage child.7

¶ 36. A later amendment to § 3252(a)(3) redefining “statutory rape” is raised by the dissent as an example of when the “consent in fact” defense is available, but compels no change in the foregoing analysis. The new legislation provides that a person over the age of fifteen may consent to sex with another under the age of nineteen. 2005, No. 192 (Adj. Sess.), § 10.8 The amendment simply rolls back the statutory age of consent, by one year, for actors within the age bracket of fifteen to nineteen years old. This exception to the common law, expressly carved out by the Legislature, still does not make consent to sex any less impossible for children outside of the specified age bracket who remain, as before, statutorily under the age of consent. Indeed, it was the impossibility of consent under common law that made it necessary to legislate the new exemption from strict criminal liability for sexual contact between fifteen-year-olds' and those under nineteen years of age. The dissent’s reliance on the § 3252(a)(3) recognition of consent by married fifteen-year-olds, otherwise under the age of consent, to support the proposition that children can consent to sex regardless of age, is misplaced. This exception, fully within the Legislature’s power, is expressly limited to the circumstance of a minor’s marriage, and does not abrogate the *137general common law rule that other underage minors cannot consent to sex.

¶ 37. The one statutory difference between the two offenses in effect at the time, that the victim must be unmarried to the offender for there to be a violation of § 3252(a)(3), is so insubstantial as to be indistinct. When the victim is under sixteen, the gravamen of both charges is that the victim is incapable of consent unless married to the defendant. The fact of a married minor is so unlikely that the pleading requirement of § 3252(a)(3) is practically moot. While the absence of marriage must be affirmatively pled for a charge of statutory rape under § 3252(a)(3), the fact of marriage is equally relevant to a charge of compelled sexual assault under § 3252(a)(1)(A) when the victim is under sixteen, since legislative recognition of a minor’s marriage introduces the defense of consent to both charges. Once the issue of a minor’s marriage to the accused is raised, under both § 3252(a)(1)(A) and § 3252(a)(3), the State has the burden of proving actual lack of consent in either case. In real terms of actual liability, the required allegation of nonmarriage in one offense, but not the other, is meaningless.

¶ 38. When, as here, the victim was unmarried and under the age of sixteen, there was no practical difference between the offenses charged. Both would punish defendant for the single act of engaging in a sexual act with the minor. Coercion and consent are not elements of statutory rape defined simply as sex with a nonspouse minor under § 3252(a)(3), and actual coercion and lack of consent are equally irrelevant to a charge of “compelled” sexual assault against a nonspouse minor under § 3252(a)(1)(A) since consent is impossible and the offense of “compels” is automatically satisfied by the absence of consent under Nash, 144 Vt. at 433, 479 A.2d at 760. The exact words to be pled may differ, but both subsections require only an allegation that the defendant engaged in a sexual act with a person under the age of sixteen.

¶ 39. The Legislature is free to punish the same conduct under two statutes, but its intent to do so must be clear. Ritter, 167 Vt. at 632, 714 A.2d at 625. “Because the two provisions set forth the ‘same’ offense under the Blockburger test, we must presume that the Legislature did not intend for the imposition of cumulative punishment ....” Grega, 168 Vt. at 384, 721 A.2d at 460. The presumption may be overcome, but only by a “‘clear indication of contrary *138legislative intent,’” such as an explicit provision that the penalty is to apply cumulatively. Id. at 385, 721 A.2d at 460. No clear expression of that sort appears here, where the statute simply provides a generally applicable penalty of a fíne and up to twenty years imprisonment for any one of the four sexual offenses disjunctively listed in § 3252(a)(1) through (4). The statute is silent as to any legislative purpose to impose a cumulative penalty for a single incident violating both subsections dealing with the same nonconsensual sexual act, a “statutory rape” under § 3252(a)(3) and a sexual contact “without... consent” under § 3252(a)(1)(A). Accordingly, only one sentence may be imposed in the event of conviction.

Defendant’s convictions and sentence for the two counts of sexual assault under 13 V.S.A. § 3252(a) are vacated, and the judgments reversed, and the matter is remanded for a new trial.