State v. Penn

State v. Penn  (2002-520); 176 Vt. 565; 845 A.2d 313

2003 VT 110

[Filed 11-Dec-2003]

                                 ENTRY ORDER

                                 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
  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 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
  disagree.

       ¶ 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
  justice.   
        
       ¶ 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.

       Affirmed.      
       



  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.),
  Specially Assigned