¶ 1. Defendant Brian Rooney appeals from his conviction and life sentence for aggravated murder following a jury trial. He argues that: (1) the State’s failure to disclose the *310Vermont Forensic Laboratory’s internal validation studies violated his due process rights and deprived him of a fair trial; and (2) the trial court erred in denying his motion to dismiss the aggravated murder charge, or, alternatively, in failing to sentence him under the first degree murder statute in violation of his equal protection rights under the United States and Vermont Constitutions. We reject these arguments and affirm both defendant’s underlying conviction and his sentence.
¶ 2. On October 13, 2006, police discovered the body of Michelle Gardner-Quinn, a University of Vermont student who had been missing since the early morning hours of October 7. Gardner-Quinn’s body was found in a crevasse in Huntington Gorge, and detectives determined the cause of death to be a combination of blunt force trauma to the head and neck compression. The position of Gardner-Quinn’s clothes as well as subsequent medical examination and forensic testing of her body and underwear indicated a sexual assault.
¶ 3. Evidence was presented at trial as to the events leading up to Gardner-Quinn’s disappearance. On the evening of October 6, Gardner-Quinn and two friends went out to dinner and to several bars in downtown Burlington. At approximately 1:30 a.m., Gardner-Quinn made plans to meet up with another friend at the Ski Rack, a store located on Main Street, and she set out alone towards that location. Gardner-Quinn was unable to connect with the friend once she reached the Ski Rack. At this point, Gardner-Quinn’s cell phone battery died, and she borrowed the phone of defendant, a stranger who had apparently just left a bar in the area. Gardner-Quinn made several calls from defendant’s phone, but was unable to reach the friend whom she was supposed to meet. A surveillance video from a downtown store showed defendant and Gardner-Quinn walking down the street at approximately 2:15 a.m. This was the last time Gardner-Quinn was seen alive. Defendant was arrested on October 23 and charged with aggravated murder under 13 V.S.A. § 2311(a)(8) for “murder[ing] another human being while perpetrating a sexual assault.”
¶ 4. Defendant was questioned multiple times about what happened to Gardner-Quinn during the early morning hours of October 7, both immediately following Gardner-Quinn’s disappearance and several times subsequent to discovery of her body. Each time, he denied having any knowledge of what happened after he let her borrow his cell phone. Questioning of defendant’s friends *311and family, however, indicated that defendant lived approximately five miles from Huntington Gorge, where Gardner-Quinn’s body was discovered, and that he was familiar with the area.
¶ 5. At trial, the State presented forensic evidence linking DNA found in sperm taken from a rectal swab of Gardner-Quinn to a DNA sample obtained from defendant. Testimony was also presented from the medical examiner, indicating that Gardner-Quinn was sexually assaulted just prior to her murder. The State also relied heavily on testimony from employees of the Vermont Forensic Laboratory, detailing the processes they used to obtain a DNA sample from sperm found on Gardner-Quinn’s body and to test whether that sample matched defendant’s DNA profile. Marcia LaFountain, a forensic scientist at the lab who worked on Gardner-Quinn’s case, testified that the result of the DNA profiling indicated that the probability of randomly selecting an unrelated individual in the general population exhibiting the combination of DNA types found from the semen in the rectal swab and the DNA sample taken from Rooney was approximately one in 240 quadrillion.
¶ 6. A substantial portion of the trial concerned whether the sample of DNA obtained from the rectal swab — which amounted to .24 nanograms of DNA — was large enough to yield an accurate profile. The State presented evidence, in the form of expert testimony from lab technicians with significant experience in both forensic analysis and quality assurance methods associated with DNA testing, indicating that the procedures followed by the lab were consistent with both national practices and with the lab’s own internal procedures. Defendant challenged the lab’s techniques, and presented evidence that a larger sample size of DNA provides optimal results. Defendant also showed evidence of irregularities and mistakes in the lab’s handling of other pieces of evidence in both this and other cases.
¶ 7. At the conclusion of the State’s case, defendant moved for acquittal, arguing that the State had not met its burden to produce evidence upon which a jury could conclude beyond a reasonable doubt that he sexually assaulted and murdered Gardner-Quinn. The court denied the motion.
¶ 8. Prior to the close of evidence, defendant moved to dismiss the aggravated murder charge, 13 V.S.A. § 2311(a)(8). He argued that because the elements for this charge are identical to the elements for first degree murder under 13 V.S.A. §2301, equal *312protection guarantees of the United States and Vermont Constitutions entitled him to be sentenced under the charge with the lesser penalty. Thus, defendant argued, he was entitled to sentencing under 13 V.S.A. § 2301, which carries a punishment of thirty-five years to life, 13 V.S.A. § 2303(a)(1)(A), rather than the mandatory life sentence attached to § 2311(a)(8). The trial court denied the motion in May 2008. The trial court explicitly rejected defendant’s equal protection arguments, concluding instead that although “both statutes provide different penalties for identical conduct, this is exactly the situation that the [United States Supreme Court] considered when it unanimously held that overlapping criminal statutes with different penalties do not violate constitutional principles unless the prosecutor selectively bases the charging decision upon impermissible considerations.”
¶ 9. Following trial, a jury convicted defendant of aggravated murder. In July 2008, defendant moved for a new trial, arguing: (1) the trial court erred in failing to submit lesser-included offenses to the jury; and (2) the State failed to produce “critical exculpatory information” pursuant to Vermont Rule of Criminal Procedure 16(b)(2). With regard to the first claim, defendant argued that the court erred in denying his request that the lesser-included offenses of second degree murder and sexual assault be included in the jury instructions. The trial court rejected this argument, concluding that “there was no evidence that Defendant murdered Michelle Gardner-Quinn apart from the evidence that he had sexually assaulted her[;] [therefore, no rational jury could find that Defendant committed the murder unless it also concluded that he had committed the sexual assault.”
¶ 10. On the second claim, defendant argued that because the DNA sample linking him to the sexual assault of Gardner-Quinn was the critical piece of the State’s case, the State had a duty to disclose validation studies setting forth the procedure the lab is supposed to use to generate reliable DNA profiling results. Defendant claimed these validation studies, obtained after trial, showed that the State’s expert provided false assertions about the lab’s ability to generate reliable DNA profiles with .24 ng of DNA input. The State denied that the studies were exculpatory, but the court rejected the claim on other grounds, holding instead that under the standard articulated in Brady v. Maryland, 373 U.S. 83 (1963), defendant had adequate knowledge of the existence of these studies and could have requested them prior to trial.
*313¶ 11. Defendant raises two claims on appeal: (1) the State violated its constitutional obligations under Brady by failing to disclose exculpatory evidence in the form of validation studies that would have impeached the reliability of the State’s DNA evidence; and (2) he is entitled to a new trial, or alternatively new sentencing, because his conduct is punishable under two statutes with identical elements and differing sentences, and such a statutory scheme violates equal protection guarantees under the United States and Vermont Constitutions.
I.
¶ 12. Defendant claims that he was denied a fair trial and due process of law as the result of the State’s failure to disclose the Vermont Forensic Laboratory’s (VFL) internal validation studies,' which defendant obtained through a motion for post-trial discovery. He contends that the studies showed that the .24 ng of DNA input lab technicians were able to obtain from semen found in a rectal swab of Gardner-Quinn was well below the range that yielded accurate results in the lab’s validation studies.1 He argues that the studies would have served to impeach the State’s DNA evidence linking defendant to the crime and, thus, disclosure was required under Brady. See also V.R.Cr.P. 16(b)(2) (requiring prosecutor to “[d]isclose to defendant’s attorney any material or information within his possession or control which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce his punishment therefor”); State v. Gibbons, 146 Vt. 342, 344, 503 A.2d 540, 541 (1985) (“Impeachment evidence, as well as exculpatory evidence, is under the protective umbrella of Brady”). Because we agree with the trial court that the existence of these *314studies was previously disclosed in discovery and defendant failed to request them, defendant cannot meet an essential element of the Brady test — that the State suppressed evidence.
¶ 13. In Brady, the United States Supreme Court announced that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. The purpose of this rule is “to assure that the defendant will not be denied access to exculpatory evidence only known to the Government.” United States v. LeRoy, 687 F.2d 610, 619 (2d Cir. 1982). There are three elements of a Brady violation: “(1) the State must have suppressed evidence; (2) that evidence must [have been] favorable to the defendant because it [was] either exculpatory or impeaching; and (3) the defendant was prejudiced as a result.” State v. LeClaire, 2003 VT 4, ¶ 8, 175 Vt. 52, 819 A.2d 719 (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).
¶ 14. A defendant who is aware of essential facts that would allow him to request the exculpatory evidence at issue, yet fails to act on that knowledge, cannot fault the State for failing to produce it. In State v. Tester, for instance, we concluded that no Brady violation had occurred, despite the State’s failure to disclose a videotaped interview of the victim, when the defendant was “well aware” of the existence and contents of the interview. 2007 VT 40, ¶ 17, 181 Vt. 506, 923 A.2d 622. Because the defendant “clearly could have discovered the videotape through the exercise of due diligence,” we concluded, there was no “suppression” of the allegedly exculpatory videotape. Id. Similarly, in LeClaire, we concluded that the defendant had not shown that the State improperly suppressed evidence where the prosecution failed to produce a sample of the victim’s hair for DNA testing despite the defendant’s request to do so because the defendant had not taken steps to request the necessary exhumation order. 2003 VT 4, ¶¶ 9-10; see also LeRoy, 687 F.2d at 618 (“Evidence is not ‘suppressed’ if the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence.” (citations omitted)). The State cannot be found to have suppressed evidence if the same information was available to the defendant through the use of “reasonable dili*315gence.” United States v. Morris, 80 F.3d 1151, 1170 (7th Cir.), cert. denied, 519 U.S. 868 (1996).2
¶ 15. Defendant’s theory of the case centered on the adequacy of the DNA profiling procedures that the lab used to identify defendant as Gardner-Quinn’s assailant. The basis of defendant’s challenge was that the sample size of the DNA taken from sperm found in Gardner-Quinn’s body was too small to yield an accurate profile. Indeed, the size of the sample was a contested point during the trial, and the jury heard much testimony from lab technicians concerning proper testing methods and validation studies.3 The State relied on Marcia LaFountain, a forensic scientist at the lab specializing in DNA analysis. She testified as *316to the methods of testing used in this case; the steps taken to secure an accurate result; the amount of DNA sample obtained from sperm found in a rectal swab of Gardner-Quinn (.24 ngs); and the result of the test, which indicated that the probability of randomly selecting an unrelated individual in the general population exhibiting the combination of DNA types found from the semen in the rectal swab and defendant’s DNA sample was approximately one in 240 quadrillion. On cross-examination, defendant’s attorney explicitly asked LaFountain whether the kits and technology used by the lab had been subject to validation studies, and she answered that they had. Defendant’s attorney then questioned LaFountain about what exactly these types of validation studies entail. Next, defendant’s attorney questioned LaFountain about a manual accompanying the DNA profiler kit used by the lab. The manual included reference to internal validation studies and was subsequently admitted into evidence.
¶ 16. The State also relied on testimony from Eric Buel, who has been the Director of the VFL since 1998. The State asked Buel about the kit manual, which recommended a range of DNA input sample from 1.0 to 2.5 ng, a range obviously above the .24 ng sample used in this case. Buel testified that though the manual did indeed recommend that range, “the kit components have been used successfully to type samples containing less than one nanogram.” Defendant, therefore, had ample knowledge of the existence of the study. Indeed, during closing remarks, defendant’s attorney tried to use the State’s failure to introduce these validation studies into evidence to his advantage:
[The prosecution] asked Doctor Buel . . . [d]oes the Vermont Forensic Laboratory have validation studies that allow it to reliably analyze samples at .24 nanograms? Yes, said Doctor Buel. And that was the end. They never produced a validation study. They never described how they validate it. They never told you what the lower limit was. They never told you if the validation study was done and they never showed you the paper. . . . These internal validation studies are critical.
*317¶ 17. Indeed, everyone appears to have known of the existence of the studies, which were referenced numerous times at trial. Under these circumstances, defendant cannot meet the first Brady prong — that the State suppressed the validation studies. See United States v. Pelullo, 399 F.3d 197, 211 (3d Cir. 2005) (identifying three factors in its analysis of whether documents had been suppressed by prosecutor — “(1) the respective knowledge of the parties; (2) [defendant’s] access to [evidence]; and (3) the government’s representations” — and concluding that because defendant unequivocally had knowledge of existence of disputed evidence, no suppression had occurred); United States v. Bracy, 67 F.3d 1421, 1428-29 (9th Cir. 1995) (concluding there is no suppression where government discloses all information necessary for defense to discover alleged Brady material on its own); and Elledge v. State, 911 So. 2d 57, 64 (Fla. 2005) (rejecting defendant’s Brady violation claim, finding, in part, that defendant failed to demonstrate that State suppressed disputed evidence because disputed evidence was mentioned several times during pretrial depositions and trial).
¶ 18. The validation studies were well within the scope of what defense counsel could be expected to investigate, and we note that Brady “impose[s] no additional duty on the prosecution team members to ferret out any potentially defense-favorable information from materials that are so disclosed.” Pelullo, 399 F.3d at 212. Because we conclude that defendant is unable to meet his burden under the first Brady prong, we need not reach the two other prongs.
II.
¶ 19. Defendant also challenges his sentence as beyond the sentencing range for first degree murder on the basis that the existence of two criminal statutes with identical elements but different penalties violates equal protection. Defendant contends that this type of statutory scheme leaves a prosecutor without a principled basis on which to choose between the two identical element crimes. Such a scheme, defendant argues, is inherently arbitrary and violates the equal protection guarantees of the United States and Vermont Constitutions because there is no legitimate purpose behind the different penalty provisions attached to crimes with identical elements. Because we find no constitu*318tional impediment to having the two statutes coexist, we reject defendant’s arguments.4
¶ 20. We begin with the contested statutory scheme. In Vermont, first degree murder is defined as follows:
Murder committed by means of poison, or by lying in wait, or by wilful, deliberate and premeditated killing, or committed in perpetrating or attempting to perpetrate arson, sexual assault, aggravated sexual assault, robbery or burglary, shall be murder in the first degree. All other kinds of murder shall be murder in the second degree.
13 V.S.A. § 2301. A person convicted of first degree murder is subject to punishment of a minimum of thirty-five years and a maximum term of life. Id. § 2303(b). In 1987, the Legislature passed an aggravated-murder statute. The statute lists eight applicable circumstances giving rise to aggravated murder, one of which is a first or second degree murder “committed in perpetrating or attempting to perpetrate sexual assault or aggravated sexual assault.” Id. § 2311(a)(8). The punishment for aggravated murder is “imprisonment for life and for no lesser term.” Id. § 2311(c). Defendant was charged, convicted, and sentenced under the latter aggravated-murder statute, and sentenced to the greater penalty as a result.
*319¶ 21. The portions of the two statutes that punish murder committed in perpetrating or attempting to perpetrate sexual assault have exactly the same elements. In other words, the State is put to the same proof if it charges first degree murder, sexual assault under § 2301 or aggravated murder under § 2311(a)(8). Both defendant and the State agree that the statutes proscribe identical conduct, and that only the penalties differ.
¶ 22. Much of the parties’ briefs focus on whether the legislative history of the later enacted aggravated-murder statute demonstrates that the Legislature intended to grant prosecutors the discretion to choose which penalty for murder should be applicable. Defendant points to statements made during House Judiciary Committee meetings, which he maintains indicate that at least some members of the Committee mistakenly believed sexual assault first degree murder to be a lesser-included offense of aggravated murder. The State appears to concede this misconception, but argues that the Legislature also intended to afford the prosecution a choice of two penalties for murder committed during the perpetration of sexual assault. Thus, the legislative history cited by each party — which seems to point in opposite and inconsistent directions — offers no help in resolving the underlying question of whether, even if the Legislature intended to allow the prosecutor to charge under either statute, such a statutory scheme is constitutional.
¶23. Defendant offers the same constitutional challenge under both the Federal and State Constitutions, contending that there is no rational basis for enacting identical criminal statutes with different penalties. The seminal case with regard to treatment of identical or overlapping elements in criminal statutes under the Federal Constitution is the United States Supreme Court’s decision in United States v. Batchelder, 442 U.S. 114, 123-24 (1979). Writing for a unanimous court in Batchelder, Justice Marshall found no constitutional impediment to a statutory scheme that permitted prosecutors to elect between offenses having identical elements but different penalties. Both of the statutes in that case prohibited convicted felons from receiving firearms but each carried different penalties. The défendant argued that he was entitled to be sentenced under the more lenient provision even though his conduct violated both statutes. The Supreme Court disagreed. The Court first rejected the claim that the provisions were void for vagueness, concluding that they “unambiguously *320specify the activity proscribed and the penalties available upon conviction.” Id. at 123. According to the Court, “[although the statutes create[d] uncertainty as to which crime may be charged and therefore what penalties may be imposed, they d[id] so to no greater extent than would a single statute authorizing various alternative punishments.” Id.
¶ 24. Next, the Court addressed the defendant’s due process and equal protection claims under the Fourteenth Amendment. The Court noted that it had “long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.” Id. at 123-24. The Court held that providing prosecutors with such a choice does not empower the executive branch to “predetermine ultimate criminal sanctions,” but “merely enables the sentencing judge to impose a longer prison sentence than [the lesser penalty statute] would permit.” Id. at 125. Thus, the Court rejected the claim that the statutory scheme delegated to the executive branch the Legislature’s responsibility to attach certain criminal penalties to certain crimes. The Court found instead that because the provisions clearly set forth the range of penalties that prosecutors and judges may seek and impose, “the power that Congress has delegated to those officials is no broader than the authority they routinely exercise in enforcing criminal laws.” Id. at 126.
¶ 25. The Court further stated:
More importantly, there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon, conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment *321and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced.
Id. at 125 (citations omitted).
¶ 26. Because the circumstances in this case are indistinguishable from those in Batchelder, the broad holding of Batchelder forecloses defendant’s requested relief under the Fourteenth Amendment. Our inquiry does not necessarily end with Batchelder, given defendant’s claim that the Vermont Constitution offers him a higher level of protection.5 We note, however, that most states have embraced the reasoning in Batchhelder. See Hart v. State, 702 P.2d 651, 662 (Alaska Ct. App. 1985) (noting that “majority” of courts have followed Batchelder); Johnson v. State, 2003 WY 9, ¶ 33, 61 P.3d 1234 (following Batchelder along with “[m]any of our sister jurisdictions”). Those that depart from Batchhelder struggle, unnecessarily from a constitutional standpoint, with two issues. The first one is whether the two statutes at issue have identical elements. See, e.g., People v. Marcy, 628 P.2d 69, 80-81 (Colo. 1981) (en banc) (holding that culpable mental state required under statute prohibiting first degree murder by extreme indifference was not sufficiently distinguishable from second degree murder to warrant substantial difference in penalty authorized by statutory scheme); State v. Williams, 2007 UT 98, ¶¶ 16-18, 175 P.3d 1029 (noting “need to *322perform the close dissection of statutory language” to determine whether elements of two statutes were sufficiently similar to create constitutional violation). The second issue is whether the severity of the disparity between the penalties in the two statutes should be a factor in deciding Batchelder’s, applicability. See Marcy, 628 P.2d at 74 n.5 (distinguishing Batchelder by noting “substantial differences in both the minimum and maximum terms of confinement for the two crimes” under consideration); cf. Hart, 702 P.2d at 662 (following Batchelder “at least to the extent that a defendant challenges two felony statutes”); Johnson, 2003 WY 9, ¶ 31 (noting that even those commentators questioning Batchelder’s logic suggest that level of disparity between statutory penalties could be factor in determining whether constitutional violation exists).
¶ 27. Apart from his inability to distinguish Batchhelder, defendant offers little in the way of explaining why the Vermont Constitution compels a different result from that held by the Court in Batchelder. Defendant does make a brief argument under the Common Benefits Clause — one amplified and expanded by the dissent.6 Indeed, the dissent concludes, entirely gratuitously, that the challenged statutory scheme violates the Common Benefits Clause of the Vermont Constitution by creating two classes of similarly situated individuals — those charged with felony murder and those charged with aggravated murder — based on unfettered and standardless prosecutorial discretion. The underlying premise of this Common Benefits analysis — that the statutory scheme at issue unconstitutionally creates two classes of similarly situated individuals — is faulty.
¶28. The Common Benefits Clause “is intended to ensure that the benefits and protections conferred by the state *323are for the common benefit of the community and are not for the advantage of persons ‘who are a part only of that community.’ ” Baker v. State, 170 Vt. 194, 212, 744 A.2d 864, 878 (1999) (quoting Vt. Const. ch. I, art. 7). When we consider a constitutional challenge under the Common Benefits Clause, we must first define the part of the community disadvantaged by the law by examining “the statutory basis that distinguishes those protected by the law from those excluded from the state’s protection.” Id. at 212-13, 744 A.2d at 878. According to the dissent, the statutory scheme challenged here creates two classes of similarly situated persons — those charged with felony murder and subject to a thirty-five-years-to-life sentence and those charged with aggravated minder and subject to a mandatory life sentence. But the statutes themselves do not treat any particular individuals or classes of individuals differently. We are all equally subject to the same legislatively conferred prosecutorial discretion to proceed under either statute as the circumstances may seem to justify in a given case. Defendants accused of murder during the course of a sexual assault are nowhere deemed or recognized as a protected class, and the risk that one prosecutor may pursue a mandatory life sentence while another may file for a more discretionary sentence in the event of different homicides arising from sexual assault is of no constitutional concern unless the choice results from impermissible racial, ethnic or gender biases. Batchelder, 442 U.S. at 125 n.9.
¶ 29. Just as a defendant has no constitutional right to elect the statute upon which he will be prosecuted, “neither is he [constitutionally] entitled to choose the penalty scheme under which he will be sentenced.” Id. at 125. As the Supreme Court stated, “[t]he prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause.” Id. The authority to charge aggravated murder in this case, rather than felony murder, is of no more practical concern than the unfettered and broad discretion exercised daily by Vermont prosecutors. Certainly, on the record of this case, which fails to reflect any discriminatory treatment, it is of no constitutional concern either. State’s attorneys may elect, solely at their option, to file felony charges against defendants when the facts equally support mere misdemeanors, and may freely choose to charge multiple offenses, compatibly with the evidence, with *324potentially stacked sentences instead of seeking a limited sentence based on a single charge.
¶ 30. Setting aside, for argument’s sake, the option of aggravated murder in this case, the State’s remaining choices in charging defendant ranged from simple assault to sexual assault to felony murder, with respective penalties ranging from one year, 13 V.S.A. § 1023(b), to three years to life, 13 V.S.A. § 3252(f)(1), to thirty-five years to life, 13 V.S.A. §§ 2301, 2303(b). Virtually unlimited prosecutorial discretion in charging decisions is no stranger to our law, and is entirely consistent with our Constitution. See Shippee, 2003 VT 106, ¶ 7 (“When there are overlapping criminal offenses with which a defendant could be charged based on the facts, it is within the prosecutor’s discretion to choose among them.”). Against this backdrop, we decline to hold that yet another unfettered charge option presents an unconstitutional infringement of defendant’s fancied and suddenly emergent right to fettered prosecutorial discretion. We are not bothered by the dissent’s point that the discretion to choose between criminal statutes with differing elements “necessarily involves considerations of proof, strategy, resources, and overall law enforcement objectives.” Post, ¶ 50. Law enforcement policy, strategic leverage and resource allocation issues do not evaporate for state’s attorneys choosing to pursue one statutory penalty over another for a charged offense.
¶ 31. The dissent’s reasoning implies that all conduct chargeable under statutes with identical elements but differing penalties is indistinguishable to the extent that there can be no constitutionally supportable basis for the State to seek prosecution under one statute rather than the other. We will not rely upon such a fiction to trump the Legislature’s unambiguous intent to allow prosecutors to seek a mandatory life sentence for those who murder during the course of a sexual assault. Criminal misconduct often involves individual circumstances that could legitimately support a prosecutor’s decision to proceed under one statute rather than another, regardless of whether the elements of the statutes are the same. One murder in the course of a sexual assault might be particularly heinous because of the nature of the assault or the defendant’s state of mind, while another might be less so.
¶ 32. Ultimately, as the Supreme Court reasoned in Batchelder, a prosecutor’s considerations in deciding which statute *325to proceed under will be similar regardless of whether the statutes being considered have identical or disparate elements. This reasoning “recognizes the critical role of prosecutorial discretion within our system of law in maintaining flexibility and sensitivity.” State v. Pickering, 462 A.2d 1151, 1160-61 (Me. 1983) (adopting Batchelder reasoning in rejecting constitutional challenge to statutory scheme that allowed prosecutors to proceed against persons charged with drunk driving under criminal or civil statutes, with same elements but varying penalties).
¶ 33. In the case of murder committed during a sexual assault, our Legislature has determined to leave to the prosecutor the discretion to seek a mandatory life sentence. To the extent that the resulting law permits the prosecutor to effectively circumscribe the trial court’s discretion in determining the length of a defendant’s sentence, there is no constitutional violation. “[D]efendant has no due process right to have a judge determine his or her sentence and, accordingly, a legislature may constrain or eliminate altogether the role of judicial discretion in the sentencing process.” Ehrsam v. Rubenstein, 917 F.2d 764, 767 (3d Cir. 1990). By the same token, “[i]t is also well settled that a legislature can exercise its right to limit judicial discretion in sentencing by bestowing on prosecutors the right to make decisions that may curtail judicial discretion.” Id. Accordingly, the Vermont Legislature has mandated certain outcomes for certain offenses upon conviction, rather than leave the consequences to judicial discretion. See, e.g., 13 V.S.A. § 3253a(b) (providing that person convicted of aggravated sexual assault of child shall be imprisoned for not less than twenty-five years without possibility of suspension, deferral, or supervised release).
¶ 34. As long as prosecutors exercise discretion in a manner that does not arbitrarily discriminate against an individual or class of individuals based on impermissible criteria such as race or religion, the State’s discretion is not limited by any constitutional provision or principle. Batchelder, 442 U.S. at 125 n.9; State v. Secrest, 331 N.W.2d 580, 583 (S.D. 1983) (noting that Batchelder “recognized the long-standing rule that when an action violates two criminal statutes, the government may prosecute under either, providing that it does not discriminate against any class of defendants”). While we may argue in the abstract that prosecutorial discretion is unfettered when choosing between *326statutes with identical elements, this is, again, practically indistinguishable from prosecutorial discretion in choosing between statutes with different elements. In either case, there is no constitutional basis, to challenge prosecutorial discretion in the absence of unlawful discrimination or some other actual and articulable abuse of discretion.
Affirmed.