State v. Penn (2002-520); 176 Vt. 565; 845 A.2d 313
2003 VT 110
2003 VT 110
SUPREME COURT DOCKET NO. 2002-520
SEPTEMBER TERM, 2003
State of Vermont } APPEALED FROM:
v. } District Court of Vermont,
} Unit No. 2, Bennington Circuit
Gregory Penn }
} DOCKET NO. 1517-11-01 BnCr
Trial Judge: David A. Howard
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
¶ 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 toes and feet and rubbed her
vaginal area. According to defendant, the State's evidence shows that, in
the darkness of the living room, he mistook ten-year-old A.M. for her
mother, and that he intended to commit a lewd act only on mother. We
¶ 10 A.M. is a ten-year old girl; her mother is a full grown
woman. Both the judge and jury had ample opportunity to observe the
physical differences between them when they testified at defendant's trial.
There is nothing in the evidence to suggest that defendant could have
mistaken A.M. for her mother. Assuming arguendo that defendant meant
initially to lick mother's toes, it would have become obvious rather
quickly that the toes and feet were those of a young girl, not a woman.
But defendant did not stop at the toes and feet; he moved up to the vaginal
area and tried to get inside A.M.'s tight shorts. It was only after A.M.
mounted a struggle against defendant that he turned his attention to the
mother. The evidence also showed that defendant was generally acquainted
with A.M.'s physical dimensions because, as A.M. testified, she had sat on
defendant's lap while he read to her, rubbed her stomach and attempted to
fondle her breasts earlier in the evening.
¶ 11 Under the plain error standard, we cannot say that this
evidence was so tenuous as to the defendant's intent that the trier of fact
rendered an unreasonable verdict based upon it. To the contrary, the
evidence, when viewed, as it must be, in the light most favorable to the
State, indicates that the jury saw and heard enough at trial to conclude
that defendant had willfully made a lewd contact with A.M. Ernest Munsey,
a witness for the State, did testify that a few days after the incident, he
confronted defendant and defendant told him that "it was dark and
[defendant] thought the little girl was the mother." Defendant, having
chosen to premise his defense at trial on the theory that he was not the
perpetrator, now asks this Court on appeal to construe this self-serving
statement as sufficient to have compelled the trial court to enter a motion
for judgment of acquittal sua sponte. Either his trial defense theory or
his appellate defense theory is consistent with innocence, but both cannot
be. Defendant's appellate argument - to put it charitably - rests on
inconsistency. It most assuredly does not give rise to a circumstance so
exceptional that failure to recognize it would result in miscarriage of
¶ 12 We are similarly unpersuaded by defendant's claim that the
trial court should have entered judgment of acquittal sua sponte on the
lewd and lascivious conduct charge. A person must commit an act of "open
and gross lewdness and lascivious behavior" to be convicted under 13 V.S.A.
§ 2601. The statute does not define what constitutes open and gross
lewdness and lascivious behavior, and we have declined to give it a precise
definition ourselves out of deference to the common sense of the community.
See State v. Purvis, 146 Vt. 441, 443, 505 A.2d 1205, 1207 (1985)
(recognizing that no precise definition of the offense exists even though
some cases have identified various factors that render certain conduct
lascivious "beyond question"). While we need not define it with
specificity here, we note approvingly the trial court's instruction to the
jury that lewd and lascivious behavior means "behavior that is sexual in
nature, lustful, or indecent, that which offends the common social sense of
the community, as well as its sense of decency and morality." We also note
that defendant does not raise any objection to this instruction on appeal.
In addition, charged conduct satisfies the statutory requirement of
openness if it is "undisguised" and is observed by at least one witness.
State v. Benoit, 158 Vt. 359, 361, 609 A.2d 230, 231 (1992).
¶ 13 The evidence showed that defendant unbuttoned and unzipped
mother's pants in full view of her ten-year-old daughter. When taken in
the context of the undeniably lewd and lascivious act committed against
A.M. moments before, the jury could have easily and reasonably concluded
that defendant's conduct was sexual in nature. In the common sense of most
people, including the people on this jury panel, the act of unbuttoning and
unzipping the pants of an unconscious woman represents conduct that is
lustful and offensive to the community's sense of decency and morality.
Accordingly, we see no plain error in defendant's conviction on this count.
BY THE COURT:
Jeffrey L. Amestoy, Chief Justice
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice
Marilyn S. Skoglund, Associate Justice
Frederic W. Allen, Chief Justice (Ret.),