Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER 

SUPREME COURT DOCKET NO. 2010-450 

JULY TERM, 2011 

State of Vermont } APPEALED FROM: 

} 

} 

 v. } Superior Court, Bennington Unit, 

} Criminal Division 

} 

Gregory H. Penn a/k/a David Smith } DOCKET NO. 1457-12-08 Bncr 

 

 Trial Judge: David T. Suntag 

In the above-entitled cause, the Clerk will enter: 

Defendant appeals his jury conviction on three counts of aggravated sexual assault and 

one count of sexual assault, arguing for the first time on appeal that the evidence was insufficient 

to establish that he was the man who committed the alleged offenses. We affirm. 

In 2008, defendant was charged with four counts of aggravated sexual assault and one 

count of sexual assault for conduct that was alleged to have occurred between January 1, 1998 

and May 26, 2001. The information alleged that defendant sexually assaulted C.S., who was 

under the age of ten at the time of the alleged offenses, by digital penetration on two occasions 

and by intercourse on two occasions. The information also alleged that defendant sexually 

assaulted by digital penetration C.S.’s sister, A.G., who was under the age of sixteen at the time 

of the alleged offense. At the close of the evidence at trial, the State dismissed one of the 

aggravated sexual assault charges involving sexual intercourse, and the jury convicted defendant 

on the remaining charges. 

On appeal, defendant argues that the evidence at trial was insufficient to demonstrate 

beyond a reasonable doubt that he was the person who committed the charged offenses. 

Defendant moved for a judgment of acquittal at the close of the State’s case, but not on the issue 

of identity. Because he failed to raise the identity issue or renew his motion for judgment of 

acquittal upon completion of his evidence, the issue on appeal is whether the trial court should 

have entered a judgment of acquittal on its own motion because “the record reveals that the 

evidence is so tenuous that a conviction would be unconscionable.” State v. Norton, 139 Vt. 

532, 534 (1981), overruled on other grounds by State v. Brooks, 163 Vt. 245 (1995). 

Upon review of the record, we conclude that defendant cannot satisfy that standard. Both 

C.S. and A.G. testified that they were sexually assaulted by a black man with a Jamaican accent 

whom they knew as “Eddie” and who was a regular drug customer at their mother’s home. The 

investigating detective testified that defendant had a Jamaican accent, and the jury heard a 

recording of his voice. The detective also testified that defendant admitted going by the name 

“Eddie,” that he had used aliases with the name “Eddie,” and that a public record from 1998 

indicated that defendant and “Eddie” were the same person who had a connection to the home 

where the victims lived with their mother at the time of the alleged assaults. A.G. and another 
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sister who was not a victim identified defendant in a police photo array as the person they knew 

at that time as “Eddie.” C.S., who was only four or five years old at the time of the assaults, was 

unable to identify defendant in the police photo array, but did identify him in the courtroom at 

trial as the perpetrator of sexual assault against her. The second putative victim, her older sister 

A.G., testified that she too was digitally penetrated by the same “Eddie,” whom she also 

identified in court as the defendant. Despite defendant’s competing evidence that the girls were 

exposed to a steady stream of men buying drugs at mother’s residence, including one other with 

a Jamaican accent, the state’s proof of defendant’s identity ten years later as the perpetrator of 

the alleged offenses was not so tenuous as to demonstrate that the conviction in this case is 

unconscionable. 

Affirmed. 

BY THE COURT: 

_______________________________________ 

John A. Dooley, Associate Justice 

_______________________________________ 

Marilyn S. Skoglund, Associate Justice 

_______________________________________ 

Brian L. Burgess, Associate Justice