Note: Decisions of a three-justice panel are not t o 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 coun ts 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 allege d to have occurred between January 1, 1998 and May 26, 2001. The information alleged that def endant sexually assaulted C.S., who was under the age of ten at the time of the alleged off enses, by digital penetration on two occasions and by intercourse on two occasions. The informati on 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 eviden ce 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 tr ial was insufficient to demonstrate beyond a reasonable doubt that he was the person wh o 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 identi ty issue or renew his motion for judgment of acquittal upon completion of his evidence, the issu e on appeal is whether the trial court should have entered a judgment of acquittal on its own mot ion because “the record reveals that the

evidence is so tenuous that a conviction would be u nconscionable.” State v. Norton, 139 Vt. 532, 534 (1981), overruled on other grounds by Stat e v. Brooks, 163 Vt. 245 (1995).

Upon review of the record, we conclude that defenda nt cannot satisfy that standard. Both C.S. and A.G. testified that they were sexually ass aulted by a black man with a Jamaican accent whom they knew as “Eddie” and who was a regular dru g customer at their mother’s home. The investigating detective testified that defendant ha d a Jamaican accent, and the jury heard a recording of his voice. The detective also testifi ed that defendant admitted going by the name “Eddie,” that he had used aliases with the name “Ed die,” 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 ti me of the alleged assaults. A.G. and another2

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 o r five years old at the time of the assaults, was unable to identify defendant in the police photo ar ray, 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 penetrat ed by the same “Eddie,” whom she also identified in court as the defendant. Despite defe ndant’s competing evidence that the girls were exposed to a steady stream of men buying drugs at m other’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 demon strate 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