Stare decisis.

State v. Carrolton, 2011 VT 131( Johnson, J. )

The State appeals from an interlocutory order granting defendant’s motion to merge into a single count the two counts of lewd-and-lascivious conduct charged by the State.  Relying on State v. Perillo, 162 Vt. 566, 649 A.2d 566 (1994), which involved facts very similar to this case, the trial court ruled that because the alleged offensive touching occurred continuously without any intervening act over a short period of time, the State could not charge defendant with multiple counts of lewd-and-lascivious conduct.  The State on appeal asks this Court to overrule Perillo and hold that the touching of two distinct intimate parts of the body are two separate offenses as a matter of law.  We decline to overrule Perillo and, accordingly, affirm the trial court’s decision.

The State has not demonstrated that, in the seventeen years since we issued Perillo, our holding has “undermined the public welfare, wrought individual injustice, or impeded the administration of justice.”  DeSantis v. Pegues, 2011 VT 114, ¶ 43 (Johnson, J, concurring).  As we have stated before, this Court is not a slavish adherent to the principle of stare decisis, but we will not deviate from policies essential to certainty, stability, and predictability in the law absent plain justification supported by our community’s ever-evolving circumstances and experiences.  See State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem.)  No such showing has been made here.  Accordingly, we decline the State’s invitation to overrule Perillo.