In re A.P.

• Decision Date: 09 October 2020
• Docket Number: No. 2019-246,2019-246
• Court: Vermont Supreme Court
• Parties: In re A.P., Juvenile

2020 VT 86

In re A.P., Juvenile

No. 2019-246

Supreme Court of Vermont

April Term, 2020

October 9, 2020

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.

On Appeal from Superior Court, Windsor Unit, Family Division

Timothy B. Tomasi, J.

James A. Valente of Costello, Valente & Gentry, P.C., Brattleboro, for Appellant.

David Tartter and James A. Pepper, Deputy State's Attorneys, Montpelier, for Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. COHEN, J. Juvenile A.P. appeals an adjudication of delinquency based on "open and gross lewdness and lascivious behavior" under 13 V.S.A. § 2601. Juvenile argues that the evidence does not support a finding that his conduct was open or gross. He further argues that § 2601 is ambiguous and therefore unenforceable against him. Finally, he argues that § 2601 is unconstitutionally vague. We affirm.

¶ 2. The State charged juvenile with lewd and lascivious conduct in violation of 13 V.S.A. § 2601 based on an incident at school. At the time of the incident, juvenile was eighteen years old and complainant was seventeen years old. The matter was transferred to the family division after juvenile requested to be treated as a youthful offender.

¶ 3. The family division held a merits hearing at which the following evidence was presented. On January 19, 2018, juvenile approached complainant in the hallway of the school. Complainant testified: "[A]ll of a sudden, he asked if he could touch my breasts, and then he just reached out, and his hand was on me." No one else was present, although school was in session. When juvenile touched complainant's breast with his hand, she turned around and ran. She was furious and upset. Juvenile testified that he reached out his hand toward complainant's chest but never touched it. He testified that he regretted disregarding complainant's feelings and felt his actions were "disgusting." The family court found complainant to be credible. It concluded that juvenile had touched her breast and in doing so had committed a delinquent act.

¶ 4. On appeal, juvenile argues that there was insufficient evidence to support the trial court's findings that his conduct was open and gross. He also contends that 13 V.S.A. § 2601 is unenforceable under the rule of lenity and the void-for-vagueness doctrine because it does not provide sufficient notice of what conduct is proscribed. We conclude that the court's findings are supported by the record. We further conclude that the statute unambiguously proscribes the type of conduct at issue here, and accordingly affirm the judgment.

I. Sufficiency of the Evidence

¶ 5. Juvenile first argues that his conduct was neither open nor gross, and therefore is not sufficient to support an adjudication of delinquency under 13 V.S.A. § 2601. That statute states: "A person guilty of open and gross lewdness and lascivious behavior shall be imprisoned not more than five years or fined not more than $300.00, or both." Id. Juvenile does not challenge the trial court's factual findings, but rather argues that those factual findings were insufficient tomeet the requirements of the statute. "In assessing the sufficiency of the evidence, this Court will uphold a judgment unless no credible evidence supports it. We review the evidence in the light most favorable to the State." In re A.C., 2012 VT 30, ¶ 19, 191 Vt. 615, 48 A.3d 595 (mem.). We conclude that, viewed in the light most favorable to the State, the conduct was "open" because it occurred in public, and "gross" because it was "patently offensive." See id. ¶ 21.

A. Openness

¶ 6. Juvenile claims that to be "open" under 13 V.S.A. § 2601, the conduct must have been witnessed by at least one person, not including the complainant. He argues that the original criminal statute addressing lewd and lascivious conduct was intended to protect against public harms, not private harms, and therefore is inapplicable to an act of nonconsensual touching that was witnessed by no one other than the victim. While we agree that the "open" requirement is somewhat unsuited to the statute's more modern usage, we conclude that a school hallway is sufficiently public to meet its requirements.

¶ 7. When it was first codified in Vermont as a statute in 1839, the crime of lewdness was intended primarily to protect public morality. The original statute stated: "If any man or woman, married, or unmarried, shall be guilty of open and gross lewdness and lascivious behavior, every such person shall be punished by imprisonment in the common jail, not more than two years, or by fine not exceeding three hundred dollars." 1839 R.S. 99, § 8. Lewdness appeared in a chapter entitled "Of Offences Against Chastity, Morality and Decency." Id. This chapter criminalized acts that did not conform to the values of the time, particularly those relating to sex. To that end, the chapter proscribed: adultery, defined as married men and unmarried women having "connection," id. § 2; certain persons found in bed together (referring to "any man with another man's wife, or any woman with another woman's husband," id. § 3); persons divorced,cohabitating; polygamy; incest; lewdness; keeping a house of ill fame; importing, printing, selling, or distributing obscene material; blasphemy; defaming courts of justice; cursing and swearing; and disturbing the remains of the dead. See id. §§ 1-15. In large part, these were victimless crimes: a person could be fined five hundred dollars for cohabitating with their ex-spouse or five dollars for swearing profanely. Id. §§ 4, 13. Rape, on the other hand, was listed under Chapter 94, "Of Offences Against the Lives and Persons of Individuals," along with assault with intent to commit rape and other forms of nonconsensual touching. See 1839 R.S. 94, §§ 21-22. By placing "open and gross lewdness" among morality crimes, rather than crimes against individuals, the Legislature appears to have perceived lewdness primarily as an act that offended collective social norms, rather than an act that injured another individual.

¶ 8. Given this background, defendants have routinely challenged their lewdness convictions on the basis that they were not sufficiently "open," where they did not intend for their conduct to be witnessed by the public. See, e.g., State v. Maunsell, 170 Vt. 543, 544, 743 A.2d 580, 582 (1999) (mem.); State v. Benoit, 158 Vt. 359, 361, 609 A.2d 230, 231 (1992). In fact, openness was an issue in the earliest case applying the statute, State v. Millard, 18 Vt. 574 (1846). In Millard, the defendant arrived at the witness's house, exposed himself, took hold of her, and repeatedly urged her to have sexual intercourse with him. Id. at 574. The defendant argued that his conduct did not constitute open and gross lewdness because it took place mostly in the witness's house and only between himself and the witness. Id. at 576. This Court rejected that theory, holding that "open" meant "undisguised, not concealed," and that "[t]he crime cannot be made to depend on the number of persons, to whom a person thus exposes himself, whether one or many." Id. at 578.

¶ 9. We have reaffirmed in recent case law that " 'open' means 'undisguised, not concealed,' and requires no more than one witness." Benoit, 158 Vt. at 361, 609 A.2d at 231 (quoting Millard, 18 Vt. at 578); see also State v. Discola, 2018 VT 7, ¶ 20, 207 Vt. 216, 184 A.3d 1177 ("[C]onduct meets the statutory requirement of 'openness' if it is done in the presence of at least one other witness."); In re A.C., 2012 VT 30, ¶ 21, 191 Vt. 615, 48 A.3d 595 (mem.) (affirming based on trial court's finding "that A.C.'s actions were open in that they were witnessed by [the victim]"). We have not insisted that lewd acts take place in public places to be open. See State v. Penn, 2003 VT 110, ¶¶ 2, 12-13, 176 Vt. 565, 845 A.2d 313 (mem.) (affirming conviction where conduct took place in third party's apartment). Neither have we insisted that more than one person witness the lewd act. See Maunsell, 170 Vt. at 543, 743 A.2d at 582; State v. Ovitt, 148 Vt. 398, 401, 535 A.2d 1272, 1273 (1986); Millard, 18 Vt. at 578. Our case law shows that we have repeatedly embraced a broad definition of "open." While even this broad interpretation has its limits, this case is not too far a stretch.

¶ 10. The act at issue here took place in a public place, a school hallway, during the school day, and was witnessed by complainant. Viewed in the light most favorable to the State, this was enough to render the act "open" under the meaning of the statute, even though no one other than complainant witnessed it. Juvenile's act was no less inappropriate and invasive than it would have been if another person had witnessed the incident. More importantly, the harm caused by juvenile's action—the invasion of complainant's bodily privacy—was not contingent on the number of witnesses to the incident. It was, however, intensified by the public nature of the act. Complainant testified, "I was just having a breakdown. . . . I mean, I just—that just happened in school." Juvenile, too, recognized that the school hallway was an "inappropriate setting" because "[s]chool is supposed to be a safe place, and at that time, I definitely, you know, did not—was notdoing my part as a student to make that a safe place." The testimony showed that juvenile's touching of complainant took place in a public setting where there was an expectation of safety, and that the touching was especially offensive as a result. This evidence supports the trial court's finding that the act was "open."

B. Grossness

¶ 11. Juvenile next argues that his...