State v. Devoid

• Decision Date: 17 September 2010
• Docket Number: No. 09-208.,09-208.
• Citation: 2010 VT 86,8 A.3d 1076
• Parties: STATE of Vermont v. Carl DEVOID, Jr.
• Court: Vermont Supreme Court

8 A.3d 1076
2010 VT 86

STATE of Vermont
v.
Carl DEVOID, Jr.

No. 09-208.

Supreme Court of Vermont.

Sept. 17, 2010.

8 A.3d 1077

Ross A. Feldmann of Gravel and Shea, Special Deputy State's Attorney, and Thomas J. Donovan, Jr., Chittenden County State's Attorney, Burlington, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

DOOLEY, J.

¶ 1. Defendant Carl Devoid, Jr. appeals his jury conviction for attempted voyeurism, a crime that the State did not originally charge, but that the court instructed the jury could find was committed. Among other arguments, defendant contends that the evidence at trial does not support the conviction. We agree and reverse.

¶ 2. Complainant resides on the second floor of an apartment building located in a secluded area in Colchester, Vermont. There is a window in her bathroom shower that overlooks a parking lot used by residents of the building. The bottom of the window is at the level of complainant's mid-chest. When complainant moved in, her landlord suggested that she cover the window with a shower curtain to protect the window from water damage. Complainant, however, did not do so. She did not think anyone could see her through the window.

¶ 3. Defendant is complainant's neighbor who resides on the first floor. He can hear complainant's shower turn on and off from his apartment. On September 1, 2008, complainant saw defendant for a few moments while he stood in the parking lot looking at her bathroom window as she was showering. On September 15, 2008, complainant again saw defendant standing in the parking lot looking at her bathroom window while she was in the shower. This time, defendant stared at her window for

8 A.3d 1078

three minutes with a hand on his crotch. Complainant left the shower, went into her bedroom and took a picture of defendant-still looking up with a hand on his crotch-with her cell phone.

¶ 4. Later that day, complainant asked her roommate-who is the same height as complainant-to stand in her shower. Meanwhile, complainant went to the parking lot and looked up at her bathroom window to determine whether anyone could see her from the ground. The parties disagree on what complainant saw when she looked up at her window and whether defendant could see any part of complainant's body that is protected by the voyeurism statute.

¶ 5. On September 16, 2008, complainant reported the incident, and the State charged defendant with voyeurism "by viewing [complainant] ... through a window while she was showering in the privacy of her home" in violation of 13 V.S.A. § 2605(b)(1). The statute provides in relevant part that "[n]o person shall intentionally view ... the intimate areas of another person without that person's knowledge and consent while the person being viewed ... is in a place where he or she would have a reasonable expectation of privacy." 13 V.S.A. § 2605(b)(1). The statute further defines "view" as "the intentional looking upon another person for more than a brief period of time, in other than a casual or cursory manner," and states that the term "intimate areas" includes a "female breast," which is defined as "any portion of the female breast below the top of the areola." Id. § 2605(a)(2), (4), (7).

¶ 6. The case went to trial, and defense counsel moved for judgment of acquittal, arguing that the evidence was insufficient to conclude either that defendant intended to view the intimate areas of complainant's body or that defendant did view those areas. The court denied the motion and submitted the case to the jury. During deliberations, the jury sent a note to the judge that read: "If we think that he is guilty of trying; but was not able to see her nipples. What kind of verdict do we give? We have not proven that he saw anything. But we believe he was trying." In response, the judge, over defendant's objection, issued the following supplemental instruction on attempt:

Under Vermont law, a person who attempts to commit an offense and does an act toward the commission thereof, but by reason of being interrupted or prevented in the execution of the same, may be found guilty of the offense charged if the jury finds, beyond a reasonable doubt, that the attempt to commit the offense was made.

¶ 7. The jury then asked the judge to clarify whether "by reason of being interrupted or prevented in the execution of the same" could mean a physical block, such as a windowsill, rather than an occurrence whereby someone physically prevented commission of the act. The judge did not give a direct answer, but instead cited a case that discusses the elements of attempt. The jury returned a verdict finding defendant guilty of attempted voyeurism. Defendant renewed his motion for judgment of acquittal, arguing that the evidence presented at trial was insufficient for a conviction of attempted voyeurism, and that the supplemental instructions were prejudicial to him. The court denied defendant's motion. The court held that the evidence that defendant looked up at complainant's window for three minutes while holding his crotch was sufficient to support a conviction for attempted voyeurism, and that the timing of the supplemental instructions was not prejudicial to defendant. This appeal followed.

¶ 8. On appeal, defendant argues that the trial court erred by giving supplemental

8 A.3d 1079

instructions to the jury, by denying defendant's motion for acquittal, and by admitting evidence of a prior bad act-defendant's first alleged viewing of complainant. We first consider whether the evidence was sufficient to support the attempted voyeurism conviction. We hold that the evidence was insufficient and, therefore, reverse the conviction without reaching the other appeal issues.

¶ 9. When reviewing a denial of motion for judgment of acquittal, we view the evidence "in the light most favorable to the prosecution, ... and determine whether the State's evidence sufficiently and fairly supports a finding of guilt beyond a reasonable doubt." State v. Lemay, 2006 VT 76, ¶ 11, 180 Vt. 133, 908 A.2d 430 (quotation omitted). Defendant claims he was entitled to judgment of acquittal because the State provided no evidence from which the jury could reasonably conclude that: (1) he intended to view complainant's intimate areas; (2) his actions constituted an overt act of attempt; (3) he was interrupted or prevented from committing the act, other than by physical impossibility; and (4) complainant had a reasonable expectation of privacy. Specifically, defendant argues that given the impossibility of his being able to see complainant's intimate areas from his vantage point on the ground, his act of merely looking at her window did not constitute an attempt. We agree that the evidence, taken in the light most favorable to the State, fails to support the charge of attempted voyeurism.

¶ 10. Vermont's attempt statute provides that "[a] person who attempts to commit an offense and does an act toward the commission thereof, but by reason of being interrupted or prevented fails in the execution of the same, shall be punished as herein provided." 13 V.S.A. § 9(a). As we have previously held, two elements ¹ required for attempt are: (1) intent to commit a certain crime; and (2) " 'an overt act designed to carry out that intent.' " State v. Synnott, 2005 VT 19, ¶ 22, 178 Vt. 66, 872 A.2d 874 (quoting State v. McGee, 163 Vt. 162, 165, 655 A.2d 729, 732 (1995)).

¶ 11. An overt act must advance beyond mere intent and "reach far enough toward accomplishing the desired result to amount to the commencement of the consummation." Id. (quotation omitted). Preparation counts as an act if it "would be likely to end, if not extraneously interrupted, in the consummation of the crime

8 A.3d 1080

intended." State v. Hurley, 79 Vt. 28, 31, 64 A. 78, 78 (1906). Once an actor commits an overt act, "the offense is complete, and abandonment of the enterprise does not negate guilt." Synnott, 2005 VT 19, ¶ 22, 178 Vt. 66, 872 A.2d 874.

¶ 12. Here, the alleged overt act committed by defendant is standing on the ground, staring at complainant's second-floor bathroom window for three minutes with a hand on his crotch. The key point of disagreement is whether defendant was able to see complainant's intimate areas, as defined by the voyeurism statute, from his location on the ground. The State asserts that defendant could and did; defendant contends that he could not. Based on our review of the jury's conclusions and the evidence, we agree with defendant.

¶ 13. At trial, complainant agreed, in response to the prosecutor's question, that the bottom of the window was at her "mid-chest area," without specifying whether the intimate areas protected by the voyeurism statute were lower or higher than the windowsill. She also testified that she observed her roommate at the window from defendant's vantage point, but the prosecution did not ask whether she could see an intimate area of her roommate's body as defined by the voyeurism statute. Other evidence on this issue includes a picture taken from inside of complainant's bathroom that shows complainant standing in front of her bathroom window. This picture clearly demonstrates that intimate areas of complainant are lower than the windowsill. We must conclude from this evidence that the jury could not find that defendant could see intimate areas of complainant's body, as defined by the statute, particularly given that complainant's shower was located on the second floor and defendant was looking at her bathroom window from the ground. Obviously, the jury agreed. The jury's notes to the judge indicate that the jurors concluded that the State had failed to prove that defendant was able to see an intimate area of complainant's body from his vantage point. Thus, even when viewed most favorably to the State, the evidence reveals that the window...