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Rivera v. State10/30/1992
. 1979), we have a clear example of repeated violations of the same statute in the perpetration of sexual assaults. We held there that the legislature intended to protect the victim against each identifiable sexual penetration. Consequently, even though a continuing course of conduct was involved, each penetration constituted a separate and distinct crime. In Baum, we held that, if different criminal acts are at issue, supported by different factual evidence, even though they are separated in time by only a few seconds, one offense is not included in the other. "The defendants can properly be punished for , under different, or the same, statutory provisions." Baum, 745 P.2d at 882 (quoting State v. Molitoni, 6 Haw. App. 77, 711 P.2d 1303, 1306 (1985), quoting in turn State v. Pia, 55 Haw. 14, 514 P.2d 580, 584-85 (1973)).
When we compare this body of law with the evidence in this case, we note that, in the assault upon MB, Rivera first grabbed her hand and thrust it down the front of his pants, making contact with his penis. This event was a separate offense from the sexual assault upon MB, and the evidence justified a conviction by the jury for violation of § 14-3-105, indecent liberties with a minor. When Rivera sexually assaulted and penetrated MB a few minutes later, he committed a violation of § 6-2-302(a)(i), sexual assault in the first degree. Under our precedents, we hold it was lawful to charge Rivera with both offenses and to sentence him for both offenses after conviction on both. The judgment and sentences are affirmed in that regard.
With regard to the charges against BJL, we encounter a different situation. BJL was awakened to discover Rivera was on top of her and had penetrated her vagina with his penis. The circumstances demonstrate that, in order to accomplish the sexual assault, he had pulled her jeans and panties down past her knees. The jury could have determined, in convicting Rivera, that pulling down BJL's clothes constituted a separate and distinct act from the sexual assault. In this instance, however, that conduct was a part of, and necessary to, the accomplishment of the sexual assault. The penetration could not have been accomplished without removal of BJL's clothing.
In Vigil v. State, 563 P.2d 1344 (Wyo. 1977), we discussed the filing of multiple charges and the separate verdicts on those charges returned by the jury. The court introduced the subject in this way:
There are here separate crimes that have been charged and proven. All arise from the same event but each involves a separate victim and courts are protective of the individual citizen subjected to the criminal conduct of another. We have compiled cases in which there were separate charges, entangling more than one citizen victim, arising out of one occurrence in which courts have held there to be no double jeopardy and imposed multiple punishments, in some cases concurrent and in others consecutive or by combinations of those sentencing techniques. The precise question is addressed to the asserted error of failure of the trial court to dismiss all or part of the counts on the grounds of double jeopardy and fair trial.
Vigil, 563 P.2d at 1351.
Dismissal of one or the other of the charges is precisely the relief sought by Rivera in this instance. Yet, the thrust of Vigil is that no prejudice attaches to charging, trying, and submitting multiple offenses to the jury and receiving separate verdicts. In Vigil, the third style of protection afforded by the constitutional prohibition was not in issue because, in that case, the trial court had imposed only one sentence. In this instance, we note the several sentences were imposed to run concurr
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