Summary
The Vermont Supreme Court affirmed Gregory Penn’s convictions for lewd and lascivious conduct with a child and lewd and lascivious conduct. The court held that the evidence supported findings that the defendant acted willfully and that his conduct toward the adult victim was open, gross, lewd, and lascivious. Because the arguments were raised for the first time on appeal, the court reviewed them for plain error and found none.
Topics
Practice areas
Questions Presented
- Whether the evidence was so insufficient regarding defendant's willful conduct toward A.M. that the trial court committed plain error by failing to enter a sua sponte judgment of acquittal under 13 V.S.A. § 2602.
- Whether the evidence was so insufficient to establish open and gross lewd and lascivious behavior toward the adult victim that the trial court committed plain error by failing to enter a sua sponte judgment of acquittal under 13 V.S.A. § 2601.
Holdings
- The trial court did not commit plain error by failing to enter a sua sponte judgment of acquittal because the evidence, viewed in the light most favorable to the State, was sufficient for the jury to find that defendant willfully made lewd contact with A.M.
- The trial court did not commit plain error by failing to enter a sua sponte judgment of acquittal because the evidence that defendant unbuttoned and unzipped the adult victim's pants in view of her ten-year-old daughter was sufficient for the jury to find open and gross lewd and lascivious behavior.
- Plain error was not established because the alleged errors were neither sufficiently obvious nor prejudicial to constitute a miscarriage of justice or an unconscionable conviction.
Key quotations
“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.” (176 Vt. at 566)
“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.”” (176 Vt. at 566)
Factual background
The evidence showed that defendant was present in an apartment where a ten-year-old girl, A.M., and her mother slept on a couch. A.M. testified that defendant licked her toes, touched her vaginal area over her clothing, attempted to reach inside her shorts, and then unbuttoned and unzipped her mother's pants while the mother was unconscious or extremely groggy. A.M. identified defendant, and the jury convicted him of lewd and lascivious conduct with a child and lewd and lascivious conduct.
Procedural history
After a two-day jury trial, defendant was convicted of violating 13 V.S.A. §§ 2601 and 2602. The trial court denied three motions for judgment of acquittal, each of which challenged only the sufficiency of the evidence identifying defendant as the perpetrator. On appeal, defendant raised new sufficiency arguments concerning willfulness and whether the conduct involving the adult victim was lewd and lascivious; the Supreme Court reviewed those claims for plain error and affirmed.