NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press. 2018 VT 74 No. 2017-209 State of Vermont Supreme Court On Appeal from v. Superior Court, Bennington Unit, Criminal Division Randy Hughs May Term, 2018 William D. Cohen, J. David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee. Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellant. PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ. ¶ 1. SKOGLUND, J. Defendant Randy Hughs appeals his sentence to serve two and one half to five years for his conviction of sexual assault of a minor. He contends that the trial court erred by: (1) considering his decision to exercise his right to a trial in determining his sentence; (2) disregarding evidence that treatment in the community would be appropriate; and (3) failing to consider defendant’s youth as a mitigating factor. We affirm. ¶ 2. On August 25, 2016, eighteen-year-old defendant had sexual intercourse with a fourteen-year-old minor, C.H., with whom he had been texting for the previous month and a half. The next day, defendant arranged to have a friend bring a “morning after” pill to C.H. When C.H.’s mother learned of the incident, she brought C.H. to the police station to file a complaint. At trial on November 4, 2016, a jury found defendant guilty of sexual assault of a minor under 13 V.S.A. § 3252(c). ¶ 3. At the sentencing hearing, a clinical psychologist testified for defendant. He noted that defendant scored a moderate-high rating under the actuarial risk-assessment measures taken by the Department of Corrections. The testifying psychologist observed that these actuarial tools have an approximately seventy-two to seventy-five percent success rate in predicting recidivism, which is significantly better than predictions made by clinicians alone. He further noted, however, that young individuals almost always score at least a moderate-low rating under this assessment scheme because it measures factors that are unlikely to be present for younger individuals, such as whether they have lived with a lover for at least two years, adding to their risk score. ¶ 4. The testifying psychologist discussed the importance of analyzing various “dynamic changeable factors,” such as “protective factors” and “risk factors,” to improve an actuarial study’s predictive power for a particular individual. The testifying psychologist noted that a psycho-sexual evaluation conducted by another psychologist had found four such “protective factors” that decreased the defendant’s risk level, including appropriate sexual interests and the absence of physical or mental barriers to treatment. However, the testifying psychologist could not say that defendant had no barriers to successful community treatment and noted that the evaluating psychologist had also found some risk factors during the assessment of defendant. Among these ...
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