State v. Penn, 2003 VT 110 (Vt. 12/11/2003), 2002-520, SEPTEMBER TERM, 2003

• Decision Date: 11 December 2003
• Docket Number: No. 2002-520, SEPTEMBER TERM, 2003,2002-520, SEPTEMBER TERM, 2003
• Citation: 2003 VT 110
• Parties: State of Vermont v. Gregory Penn
• Court: Vermont Supreme Court

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2003 VT 110

State of Vermont v. Gregory Penn

No. 2002-520, SEPTEMBER TERM, 2003

Supreme Court of Vermont

December 11, 2003

APPEALED FROM: District Court of Vermont, Unit No. 2, Bennington Circuit, DOCKET NO. 1517-11-01 BnCr, Trial Judge: David A. Howard.

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

¶ 1 Defendant appeals his conviction on one count of lewd and lascivious conduct and one count of lewd and lascivious conduct with a child. Defendant argues that the trial court committed plain error by failing to enter a judgment of acquittal, on its own motion, because (1) the evidence did not establish that defendant willfully committed a lewd act upon the alleged child victim, and (2) the state failed to prove that the contact with the alleged adult victim was lewd and lascivious. Defendant makes these claims for the first time on appeal, and in spite of the fact that his defense at trial was predicated exclusively on the theory that defendant was not the perpetrator. We affirm.

¶ 2 On June 20, 2002, after a two day jury trial, Gregory Penn was convicted of one count of lewd and lascivious conduct with a child in violation of 13 V.S.A. § 2602 and one count of lewd and lascivious conduct in violation of 13 V.S.A. § 2601. Specifically, defendant was convicted of licking the toes and touching the vaginal area of A.M., a ten-year-old girl, and unbuttoning and unzipping the pants of her mother while attempting to place his hands inside mother's pants.

¶ 3 A group of friends, including A.M.'s mother, A.M. and defendant, assembled at Angela Daniels' apartment on August 5, 2002. The adult guests drank beer for most of the day and into the night. After consuming alcohol and some anti-anxiety medication, A.M.'s mother decided that it would be better for her and her two daughters to remain at the apartment for the night instead of attempting to walk home.

¶ 4 A.M., her sister M.M. and their mother went to sleep on a couch in the living room. Mother and M.M. slept on one end of the couch, while A.M. slept at the other. Defendant was present in the living room at the time that A.M. and her mother retired to the couch. A.M. testified that defendant was seated in a rocking chair approximately three and one half feet from the couch. Some time later, A.M. awoke to find defendant licking her feet and in between her toes. A.M. testified that defendant proceeded to rub her vaginal area over her clothes, and attempted to place his hand up her shorts, but was unable to do so because they were too tight. When defendant tried to unbutton A.M.'s pants, she rolled over and squeezed her legs together tightly. Defendant tried to pull her leg, but she pushed back.

¶ 5 Defendant then turned his attention to mother. A.M. watched as defendant unbuttoned and unzipped her mother's pants. A.M. asked defendant what he was doing. He responded "nothing" and told A.M. to go back to sleep. Defendant then retreated to the rocking chair as A.M. attempted to wake her mother up, but was unable to fully do so because her mother was extremely groggy from the drugs and alcohol she had consumed. Defendant then moved into the kitchen to retrieve his beer from the refrigerator. A.M. recognized defendant in the light cast by the open refrigerator.

¶ 6 Defendant moved for a judgment of acquittal at the close of the State's case on grounds that the State had failed to present sufficient evidence identifying defendant as the person who committed the acts charged. The court denied this motion after noting the evidence that supported A.M.'s identification of defendant as the perpetrator. The court, after observing on the record that the other elements of the charges were not specifically challenged, then stated that it would "find that there is sufficient evidence on the other issues in that if someone did touch A[.]M[.] and [her mother] in a manner testified to that that would be behavior punishable under these two counts." Defendant subsequently filed two more motions for judgment of acquittal, one after the close of the evidence and one after the jury delivered its verdict. The sole ground for both motions, which the court denied, was again that the State failed to present sufficient evidence identifying defendant as the person who touched A.M. and her mother.

¶ 7 Defendant willingly concedes that he did not present to the trial court either of the arguments pressed on appeal; therefore we review them under the plain error standard. State v. Roy, 151 Vt. 17, 23, 557 A.2d 884, 888 (1989); see V.R.Cr.P. 52(b). "Plain error exists only in exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights." State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 26 (1993) (internal quotations and citations omitted). Plain error analysis requires a fact-based consideration of the specifics of each case. State v. Weeks, 160 Vt. 393, 400, 628 A.2d 1262, 1266 (1993). "Obviousness of the error and prejudice to defendant are the key factors in the analysis." Id.

¶ 8 A court should enter a judgment of acquittal on its own motion only when "the record reveals that the evidence is so tenuous that a conviction would be unconscionable." State v. Norton, 139 Vt. 532, 534, 431 A.2d 1244, 1245 (1981), overruled on other grounds by State v. Brooks, 163 Vt. 245, 658 A.2d 22 (1995). A conviction is proper when the evidence, viewed in the light most favorable to the State, excluding any modifying evidence, fairly and reasonably tends to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Prior, 174 Vt. 49, 53, 804 A.2d 770, 773 (2002).

¶ 9 The crime of lewd and lascivious conduct with a child under sixteen requires a willful act on the part of the defendant. 13 V.S.A. § 2602. The trial court's jury charge correctly defined willfully as "purposefully and intentionally, and not by accident, mistake or inadvertence." Defendant claims that the evidence did not support his conviction on this count because it did not prove beyond a reasonable doubt that defendant "willfully" licked A.M.'s...